Citation Nr: 0931584
Decision Date: 08/24/09 Archive Date: 09/02/09
DOCKET NO. 06-06 291 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Medical and Regional Office
Center in Fargo, North Dakota
THE ISSUES
1. Entitlement to service connection for pes planus.
2. Entitlement to service connection for hypertension, to
include as secondary to service-connected post traumatic
stress disorder (PTSD) and diabetes mellitus.
3. Entitlement to service connection for gastroesophageal
reflux disease (GERD), claimed as secondary to service-
connected PTSD.
4. Entitlement to service connection for chronic fatigue
syndrome, claimed as secondary to service-connected PTSD.
5. Entitlement to service connection for diabetic
retinopathy.
6. Entitlement to service connection for polyuria,
polyphagia, polydipsia, blurred vision, nausea, dry mouth,
excessive sweating, abdominal pain and leg pain, claimed as
secondary to service-connected diabetes mellitus.
7. Entitlement to service connection for tinnitus.
8. Entitlement to service connection for gout.
9. Entitlement to service connection for obstructive sleep
apnea, claimed as secondary to service-connected PTSD.
10. Whether new and material evidence has been received to
reopen a previously-denied claim of entitlement to service
connection for bilateral hearing loss.
11. Whether new and material evidence has been received to
reopen a previously-denied claim of entitlement to service
connection for refractive error.
12. Whether new and material evidence has been received to
reopen a previously-denied claim of entitlement to service
connection for headaches.
13. Whether new and material evidence has been received to
reopen a previously-denied claim of entitlement to service
connection for a lung disorder.
14. Whether new and material evidence has been submitted to
reopen a previously-denied claim of entitlement to service
connection for a back disability.
15. Whether new and material evidence has been submitted to
reopen a previously-denied claim of entitlement to service
connection for vertigo.
16. Whether new and material evidence has been received to
reopen a previously-denied claim of entitlement to service
connection for bilateral otitis externa.
17. Entitlement to an increased (compensable) disability
rating for service-connected laceration of the left little
finger.
18. Entitlement to an effective date earlier than December
31, 2002 for the award of service connection for diabetes
mellitus.
19. Entitlement to an effective date earlier than May 28,
1998 for the award of a total disability rating based on
individual unemployability due to service-connected
disability (TDIU).
20. Entitlement to compensation pursuant to 38 U.S.C. § 1151
for denial of a treadmill and an inferior whirlpool bath.
21. Entitlement to compensation pursuant to 38 U.S.C. § 1151
for diabetes mellitus.
22. Whether discontinuance of services under Title 38,
United States Code, Chapter 31, Vocational Rehabilitation
Services, Independent Living Program was proper.
23. Entitlement to special monthly compensation based on the
need for regular aid and attendance or housebound status.
24. Whether new and material evidence has been submitted to
reopen a previously-denied claim of entitlement to service
connection for bruxism, claimed as secondary to service-
connected PTSD.
25. Whether new and material evidence has been submitted to
reopen a previously-denied claim of entitlement to service
connection for obesity, claimed as secondary to service-
connected PTSD.
26. Entitlement to service connection for an upper
respiratory infection.
27. Entitlement to service connection for hemorrhoids, to
include as secondary to service-connected disabilities.
28. Entitlement to service connection for fibromyalgia,
claimed as secondary to service-connected PTSD.
29. Entitlement to service connection for a skin disorder,
to include as secondary to herbicide exposure and service-
connected diabetes mellitus and PTSD.
30. Entitlement to an effective date earlier than December
16, 2003 for the award of service connection for a laceration
of the left little finger.
ATTORNEY FOR THE BOARD
S. Bush, Counsel
INTRODUCTION
The Veteran served on active duty in the United States Army
from April 1968 to February 1970.
This case comes before the Board of Veterans' Appeals (the
Board) on appeal from rating decisions of the Department of
Veterans Affairs (VA) Regional Office in Fargo, North Dakota
(the RO).
Procedural history
Service connection for a back disability and bilateral
hearing loss was initially denied in August 1971 rating
decision. The Veteran appealed that determination to the
Board, which upheld the RO's findings in a July 1972
decision.
Service connection for a visual condition and headaches was
initially denied in a November 1985 rating decision, which
the Veteran did not appeal.
A July 2002 rating decision denied service connection for a
lung disorder and determined new and material evidence had
not been submitted to reopen the previously-denied back
disability. The Veteran did not appeal this decision.
In an August 2003 rating decision, the RO granted service
connection for diabetes mellitus effective January 16, 2003.
At that time the RO denied service connection for benign
positional vertigo, gout, sleep apnea, hypertension, bruxism,
obesity, pes planus and GERD. The Veteran perfected an
appeal as to the pes planus, hypertension and sleep apnea
claims only.
A July 2004 rating decision granted service connection for a
left little finger laceration; a noncompensable disability
rating was assigned effective December 16, 2003. The RO also
denied service connection for folliculitis or other acne form
skin disease, chronic fatigue, fibromyalgia and bilateral
otitis externa. The Veteran perfected an appeal as to the
disability rating assigned to the left little finger
laceration and the denial of service connection for
folliculitis, chronic fatigue and fibromyalgia. As will be
detailed further below, in July 2004 the Veteran filed a
notice of disagreement (NOD) as to the effective date of
service connection for the left little finger laceration. A
statement of the case (SOC) has not been issued as to that
matter.
An October 2005 rating decision awarded an earlier effective
date of December 31, 2002 for the grant of service connection
for diabetes mellitus. The RO also denied an effective date
earlier than May 28, 1998 for the award of TDIU as well as
the Veteran's service connection claims for porphyria cutanea
tarda, hemorrhoids, diabetic retinopathy, a fungal infection,
diabetic dermopathy, acanthosis nigricans, polyuria,
polyphagia, polydipsia, blurred vision, fatigue, nausea, dry
mouth, excessive sweating, abdominal pain, and leg pain. The
Veteran's claim for special monthly compensation based on aid
and attendance or housebound status was also denied, as were
the Veteran's claims to reopen service connection for a back
disability, a lung disorder, refractive error, headaches,
bruxism, obesity, GERD, gout and vertigo. The Veteran
perfected an appeal of this decision.
A March 2006 rating denied service connection for tinnitus
and an upper respiratory infection and determined that new
and material evidence had not been submitted to reopen the
claims for service connection for bilateral otitis externa
and bilateral hearing loss. The Veteran perfected an appeal
of this decision.
An August 2006 rating decision denied the Veteran's claims
for compensation pursuant to 38 U.S.C. § 1151 for diabetes
and the denial of issue of a treadmill and installation of a
whirlpool bath. The Veteran perfected an appeal of this
determination.
An August 2006 determination discontinued the Veteran's
benefits under the Independent Living program. The Veteran
perfected an appeal of that decision.
Finally, a November 2007 rating decision denied the Veteran's
claim of entitlement to service connection for hypertension.
The Veteran perfected an appeal. As this matter had already
been addressed in the above-referenced August 2003 rating
decision, the two appeals have been merged for the sake of
simplicity.
The Board notes that after receipt of additional outpatient
records, the RO did not readjudicate some of the Veteran's
claims via issuance of a supplement statement of the case
(SSOC). However, the subsequently-submitted outpatient
records are duplicative of prior evidence of record
documenting the Veteran's various medical problems, or in
some cases lack thereof, which were established at the times
of the most recent adjudication of said claims. Accordingly,
these updated outpatient records are not "pertinent" to the
claims and they need not be returned to the RO for
readjudication. See 38 C.F.R. § 20.1304(c) (2008).
Clarification of issues on appeal
The Veteran has claimed service connection for a number of
skin disorders over the years, including porphyria cutanea
tarda, folliculitis, fungal infection, jock itch, diabetic
dermopathy and acanthosis nigricans. For the sake of
simplicity, the Board has recharacterized these separate
issues into one issue, entitlement to service connection for
a skin disorder.
Issues not on appeal
One issue previously on appeal, entitlement to service
connection for peripheral neuropathy, was granted in an
August 2006 rating decision, which has not been appealed.
Since the claim was granted, the appeal as to that issue has
become moot. No notice of disagreement has been filed as to
the disability rating assigned or the effective date. See
Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) [where an
appealed claim for service connection is granted during the
pendency of the appeal, a second Notice of Disagreement must
thereafter be timely filed to initiate appellate review of
"downstream" issues such as the compensation level assigned
for the disability or the effective date of service
connection].
A July 2007 rating decision denied increased disability
ratings for the service-connected peripheral neuropathy of
the bilateral lower extremities and diabetes mellitus; and
denied service connection for a small bowel carcinoid with
liver metastases and peripheral neuropathy of the bilateral
upper extremities. A November 2008 rating decision decreased
rating assigned the Veteran's service-connected diabetes
mellitus to 10 percent disabling and denied the Veteran's
claims of entitlement to service connection for chronic
kidney disease and hypertension. To the Board's knowledge,
the Veteran has not disagreed with those decisions and they
are therefore not in appellate status. See Archbold v.
Brown, 9 Vet. App. 124, 130 (1996) [pursuant to 38 U.S.C.A. §
7105(a), the filing of a notice of disagreement initiates
appellate review in the VA administrative adjudication
process, and the request for appellate review is completed by
the claimant's filing of a substantive appeal after a
statement of the case is issued by VA].
Remanded issues
As will be discussed below, the issue of the Veteran's
entitlement to service connection for bilateral otitis
externa is being reopened by the Board due to the receipt of
new and material evidence. That issue, along with the issues
of whether new and material evidence has been submitted which
is sufficient to reopen the previously-denied claims of
entitlement to service connection for bruxism and obesity,
entitlement to an effective date earlier than December 16,
2003 for the award of service connection for a laceration of
the left little finger, as well as the claims of entitlement
to service connection for an upper respiratory infection, a
skin disorder, fibromyalgia and hemorrhoids, are addressed in
the REMAND portion of this decision and are REMANDED to the
RO via the VA Appeals Management Center (AMC) in Washington,
D.C.
FINDINGS OF FACT
1. The competent medical evidence of record indicates that
the Veteran's currently diagnosed pes planus is etiologically
related to his military service.
2. The competent medical evidence of record indicates that
the Veteran's currently diagnosed hypertension is
etiologically related to his service-connected PTSD.
3. The competent medical evidence of record indicates that
the Veteran's currently diagnosed GERD is etiologically
related to his service-connected PTSD.
4. The competent medical evidence of record does not
indicate that chronic fatigue syndrome currently exists.
5. The competent medical evidence of record does not
indicate that diabetic retinopathy currently exists.
6. The competent medical evidence of record does not
indicate that a disability manifested by polyuria,
polyphagia, polydipsia, blurred vision, nausea, dry mouth,
excessive sweating, abdominal pain and leg pain currently
exists.
7. The competent medical evidence of record does not
indicate that a relationship exists between the Veteran's
currently diagnosed tinnitus and his military service.
8. The competent medical evidence of record does not
indicate that a relationship exists between the Veteran's
currently diagnosed gout and his military service.
9. The competent medical evidence of record does not
indicate that a medical nexus exists between the Veteran's
service-connected PTSD and his currently diagnosed
obstructive sleep apnea.
10. In July 1972, the Board denied the Veteran's claim of
entitlement to service connection for bilateral hearing loss
on the merits.
11. The evidence associated with the claims folder
subsequent to Board's July 1972 decision is cumulative and
redundant of the evidence of record at the time of the last
prior final denial, and does not raise a reasonable
possibility of substantiating the claim.
12. In an unappealed November 1985 decision, the RO denied
the Veteran's claims of entitlement to service connection for
a visual condition and headaches.
13. The evidence associated with the claims folder
subsequent to the November 1985 RO rating decision is
cumulative and redundant of the evidence of record at the
time of the last prior final denial, and does not raise a
reasonable possibility of substantiating the claims.
14. In an unappealed July 2002 decision, the RO denied the
Veteran's claim of entitlement to service connection for a
lung disorder and denied the reopening of the previously-
denied claim of entitlement to service connection for a back
disability.
15. The evidence associated with the claims folder
subsequent to the July 2002 RO rating decision is cumulative
and redundant of the evidence of record at the time of the
last prior final denial, and does not raise a reasonable
possibility of substantiating the claims.
16. In an unappealed August 2003 decision, the RO denied the
Veteran's claim of entitlement to service connection for
vertigo.
17. The evidence associated with the claims folder
subsequent to the August 2003 RO rating decision is
cumulative and redundant of the evidence of record at the
time of the last prior final denial, and does not raise a
reasonable possibility of substantiating the claim.
18. In an unappealed July 2004 decision, the RO denied the
Veteran's claim of entitlement to service connection for
bilateral otitis externa.
19. The evidence associated with the claims folder
subsequent to RO's July 2004 rating decision pertains to a
current diagnosis of bilateral otitis externa, which had not
been established at the time of the prior final denial. The
additionally received evidence is neither cumulative nor
redundant of the evidence of record at the time of the last
prior final denial, and raises a reasonable possibility of
substantiating the claim.
20. The Veteran's service-connected laceration of the left
little finger is manifested by minimal functional loss due to
stiffness and loss of sensation; there is no objective
evidence of a scar that is painful on examination.
21. Type II diabetes mellitus was added to the list of
diseases for presumptive service connection based on
herbicide exposure on May 8, 2001; the Veteran filed his
original claim of entitlement to service connection for
diabetes mellitus more than one year afterwards on December
31, 2002.
22. An informal claim for rating for TDIU was received on
March 3, 1999. In a December 2002 decision, the RO awarded
TDIU, assigning an effective date of May 28, 1998.
23. Prior to May 28, 1998, it is not factually ascertainable
that the Veteran was unemployable because of service-
connected PTSD alone.
24. A preponderance of the medical evidence supports a
conclusion no additional disability was caused by denial of a
treadmill and an inferior whirlpool bath.
25. A preponderance of the medical evidence supports a
conclusion that the Veteran's diabetes was not caused by VA
medical treatment.
26. The Veteran completed the terms of the Individualized
Independent Living Plan (IILP) to which he agreed in March
2003 and has utilized the maximum 24 months plus one six
month extension of Independent Living services.
27. The medical and other evidence of record does not
demonstrate that the Veteran is in the need of regular aid
and attendance by another person by reason of disability, nor
is he housebound.
CONCLUSIONS OF LAW
1. Service connection for pes planus was incurred is
warranted.
38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2008).
2. Service connection for hypertension is warranted.
38 C.F.R. § 3.310 (2008).
3. Service connection for GERD is warranted. 38 C.F.R.
§ 3.310 (2008).
4. Service connection for chronic fatigue syndrome is not
warranted.
38 C.F.R. § 3.310 (2008).
5. Service connection for diabetic retinopathy is not
warranted.
38 C.F.R. § 3.310 (2008).
6. Service connection for polyuria, polyphagia, polydipsia,
blurred vision, nausea, dry mouth, excessive sweating,
abdominal pain and leg pain is not warranted.
38 C.F.R. § 3.310 (2008).
7. Tinnitus was not incurred in or aggravated by active
military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R.
§ 3.303 (2008).
8. Gout was not incurred in or aggravated by active military
service and may not be so presumed. 38 U.S.C.A. §§ 1110,
1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307,
3.309 (2008).
9. Obstructive sleep apnea is not proximately due to nor is
it the result of the Veteran's service-connected PTSD. 38
C.F.R. § 3.310 (2008).
10. The Board's July 1972 decision denying service
connection for bilateral hearing loss is final. 38 U.S.C.A.
§ 7104 (West 2002); 38 C.F.R. § 20.1100 (2008).
11. Since the July 1972 Board decision, new and material
evidence has not been received which is sufficient to reopen
the claim of entitlement to service connection for bilateral
hearing loss. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R.
§ 3.156 (2008).
12. The November 1985 RO decision is final. 38 U.S.C.A. §
7105 (West 2002); 38 C.F.R. §§ 3.104, 20.1103 (2008).
13. Since the November 1985 RO decision, new and material
evidence has not been received which is sufficient to reopen
the claims of entitlement to service connection for
refractive error and headaches. 38 U.S.C.A. § 5108 (West
2002); 38 C.F.R. § 3.156 (2008).
14. The July 2002 RO decision is final. 38 U.S.C.A. § 7105
(West 2002); 38 C.F.R. §§ 3.104, 20.1103 (2008).
15. Since the July 2002 RO decision, new and material
evidence has not been received which is sufficient to reopen
the claims of entitlement to service connection for a lung
disorder and a back disability. 38 U.S.C.A. § 5108 (West
2002); 38 C.F.R. § 3.156 (2008).
16. The August 2003 RO decision is final. 38 U.S.C.A. §
7105 (West 2002); 38 C.F.R. §§ 3.104, 20.1103 (2008).
17. Since the August 2003 RO decision, new and material
evidence has not been received which is sufficient to reopen
the claim of entitlement to service connection for vertigo.
38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2008).
18. The July 2004 RO decision is final. 38 U.S.C.A. § 7105
(West 2002); 38 C.F.R. §§ 3.104, 20.1103 (2008).
19. Since the July 2004 RO decision, new and material
evidence has been received which serves to reopen the claim
of entitlement to service connection for bilateral otitis
externa. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156
(2008).
20. The criteria for a compensable disability rating for the
laceration of the left little finger have not been met. 38
U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.71a, 4.118,
Diagnostic Codes 5230, 7805 (2008).
21. The correct effective date of the grant of service
connection for type II diabetes mellitus is December 31,
2001. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.114,
3.400(p), 3.816 (2008).
22. The requirements for an effective date earlier than
March 28, 1998 for the award of TDIU have not been met. 38
U.S.C.A. §5110 (West 2002); 38 C.F.R.
§ 3.400 (o) (2008).
23. Compensation under the provisions of 38 U.S.C. § 1151
for denial of a treadmill and an inferior whirlpool bath is
not warranted. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. §
3.361 (2008).
24. Compensation under the provisions of 38 U.S.C. § 1151
for diabetes is not warranted. 38 U.S.C.A. § 1151 (West
2002); 38 C.F.R. § 3.361 (2008).
25. Discontinuance of services under the Independent Living
program was proper. 38 U.S.C.A. § 3105 (West 2002); 38
C.F.R. §§ 21.76, 21.192 (2008).
26. The criteria for special monthly compensation based on
the need for regular aid and attendance, or at the housebound
rate, have not been established.
38 U.S.C.A. § 1114 (West 2002); 38 C.F.R. §§ 3.350, 3.352
(2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran seeks service connection for a number of
disabilities, to include as secondary to service-connected
PTSD, as well as a compensable disability rating for a
laceration on his left little finger. He also seeks
compensation pursuant to
38 U.S.C. § 1151 and earlier effective dates for the award of
TDIU and service connection for diabetes. Finally, he
desires to reopen a number of previously-denied claims for
service connection.
In the interest of clarity, the Board will first discuss
certain preliminary matters. The Board will then render a
decision.
The Veterans Claims Assistance Act of 2000 (VCAA)
The Board has given consideration to the VCAA. The VCAA
includes an enhanced duty on the part of VA to notify a
claimant as to the information and evidence necessary to
substantiate a claim for VA benefits. The VCAA also
redefines the obligations of VA with respect to its statutory
duty to assist claimants in the development of their claims.
See 38 U.S.C.A. §§ 5103, 5103A (West 2002).
For claims to reopen, such as included in the instant case,
the VCAA appears to have left intact the requirement that a
veteran must first present new and material evidence in order
to reopen a previously and finally denied claim under 38
U.S.C.A. § 5108 before the Board may determine whether the
duty to assist is fulfilled and proceeding to evaluate the
merits of that claim. It is specifically noted that nothing
in the VCAA shall be construed to require VA to reopen a
claim that has been disallowed except when new and material
evidence is presented or secured, as described in 38 U.S.C.A.
§ 5108. See 38 U.S.C.A. § 5103A(f) (West 2002).
Once a claim is reopened, the VCAA provides that VA shall
make reasonable efforts to assist a claimant in obtaining
evidence necessary to substantiate the claimant's claim for
benefits under a law administered by the Secretary, unless no
reasonable possibility exists that such assistance would aid
in substantiating the claim. 38 U.S.C.A. § 5103A (West
2002).
The VCAA duty to notify currently applies to all issues on
appeal; the standard of review and duty to assist do not
apply to the claims to reopen unless they are reopened.
See Holliday v. Principi, 14 Vet. App. 280 (2000) [the Board
must make a determination as to the applicability of the
various provisions of the VCAA to a particular claim].
The Board notes that the statutes and regulations governing
adjudication of the Veteran's claim for benefits under the
Independent Living program arise under Chapter 31 of Title 38
of the United States Code. The VCAA does not apply to claims
arising under this chapter. See Barger v. Principi, 16 Vet.
App. 132, 138 (2002) to the effect that the VCAA applies only
to provisions under Chapter 51 of Title 38, United States
Code.
Standard of review
In general, after the evidence has been assembled, it is the
Board's responsibility to evaluate the entire record. See 38
U.S.C.A. § 7104(a) (West 2002). When there is an approximate
balance of evidence regarding the merits of an issue material
to the determination of the matter, the benefit of the doubt
in resolving each such issue shall be given to the claimant.
See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R.
§§ 3.102, 4.3 (2008).
In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the
United States Court of Appeals for Veterans Claims (the
Court) stated that "a veteran need only demonstrate that
there is an 'approximate balance of positive and negative
evidence' in order to prevail." To deny a claim on its
merits, the preponderance of the evidence must be against the
claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996),
citing Gilbert, 1 Vet. App. at 54.
As alluded to above, this standard does not apply to a claim
to reopen until such claim has in fact been reopened. The
standard of review as to the issues involving the submission
of new and material evidence will be set forth where
appropriate below.
Notice
The VCAA requires VA to notify the claimant and the
claimant's representative of any information and any medical
or lay evidence not previously provided to VA that is
necessary to substantiate the claim. As part of the notice,
VA is to specifically inform the claimant and the claimant's
representative of which portion of the evidence is to be
provided by the claimant and which part VA will attempt to
obtain on behalf of the claimant. See 38 U.S.C.A. § 5103
(West 2002); see also Quartuccio v. Principi, 16 Vet. App.
183 (2002) [a letter from VA to an appellant describing
evidence potentially helpful to the appellant but not
mentioning who is responsible for obtaining such evidence did
not meet the standard erected by the VCAA]. The Board is
granting the Veteran's claims of entitlement to service
connection for pes planus, hypertension and GERD. Therefore,
any VCAA notice deficiencies as to these claims are moot.
Crucially, the RO informed the Veteran of VA's duty to assist
him in the development of his claims in letters dated March
24, 2004; October 14, 2004; February 23, 2005; June 20, 2005;
January 26, 2006; and April 11, 2006, which advised the
Veteran of the provisions relating to the VCAA.
Specifically, the Veteran was advised in the letters that VA
would obtain all evidence kept by the VA and any other
Federal agency, including VA facilities and service medical
records. He was also informed that VA would, on his behalf,
make reasonable efforts to obtain relevant private medical
records that the he identified. Included with the letters
were copies of VA Form 21- 4142, Authorization and Consent to
Release Information, and the letters asked that the Veteran
complete this release so that VA could obtain these records
on his behalf. The letters also informed the Veteran that
for records he wished for VA to obtain on her behalf he must
provide enough information about the records so that VA can
request them from the person or agency that has them. As the
Veteran is unrepresented, the February 2005, June 2005,
January 2006 and April 2006 letters also listed a number of
Veterans' Service Organizations (VSOs) and informed the
Veteran that he could receive free representation from a VSO
for his case.
The March 2004 letter specifically advised the Veteran that
to substantiate his service connection claims the evidence
must demonstrate "a relationship between your disability and
an injury, disease, or event in military service." See the
March 24, 2004 letter at 6. The Veteran was advised of the
evidentiary requirements to substantiate his secondary
service connection claims in the April 2006 letter, including
the necessity of evidence that "your service-connected
disability either caused or aggravated your additional
disability." See the April 11, 2006 letter at 8.
The April 2006 letter also advised the Veteran that to
substantiate his increased rating claim "the evidence must
show that your service-connected condition has gotten
worse," as well as the evidentiary requirements for
compensation pursuant to 38 U.S.C. § 1151. Id. at 6-7. The
Veteran was advised of the evidentiary requirements for his
claim for special monthly compensation based on aid and
attendance/housebound status in the February 2005 letter.
See the February 23, 2005 letter at 8. The notification
requirements for his earlier effective date claims will be
addressed in the Dingess discussion below.
With respect to notice regarding new and material evidence,
the above-referenced February 2005 and January 2006 letters
specifically explained that the Veteran was previously denied
service connection for a lung condition, refractive error,
headaches, bilateral otitis externa and bilateral hearing
loss and that the appeal period for these decisions had
expired and are now final. A letter dated November 18, 2003
explained that the Veteran was previously denied service
connection for a back disability and vertigo and that the
appeal period was expired for the back claim and would expire
for the vertigo claim in August 2004. The Veteran was
advised evidence sufficient to reopen his previously denied
claims must be "new and material," closely mirroring the
regulatory language of 38 C.F.R. § 3.156(a). The Veteran was
also specifically advised in the letters as to the reasons
these claims were previously denied: "Your military records
did not show a back injury . . . There is no evidence that a
current back condition is linked to your period of military
service . . . Your service medical records do not show
complaints of, or treatment for, episodic dizziness in
service" (November 2003); "lung condition: SMRs do not show
treatment of lung condition during service; refractive error:
condition was considered a congenital or developmental
condition and the evidence showed not [sic] aggravation
during service; headaches: SMRs did not show evidence during
service" (February 2005); "Your claim for bilateral hearing
loss was previously denied because your hearing was within
normal limits . . . at the time of your compensation
examination. Your claim for bilateral otitis externa was
previously denied because it neither occurred in or was
caused by service." (January 2006). See Kent v. Nicholson,
20 Vet. App. 1 (2006).
In the above-referenced letters, the Veteran was specifically
notified to describe or submit any additional evidence which
he thought would support his claims, in compliance with the
"give us everything you've got" requirement contained in
38 C.F.R. § 3.159 (b). See, e.g., the March 24, 2004 letter
at 2. [The Board notes that 38 C.F.R. § 3.159 was revised,
effective May 30, 2008. See 73 Fed. Reg. 23353-56 (Apr. 30,
2008). The amendments apply to applications for benefits
pending before VA on, or filed after, May 30, 2008. The
amendments, among other things, removed the notice provision
requiring VA to request the veteran to provide any evidence
in the veteran's possession that pertains to the claim. See
38 C.F.R. § 3.159(b)(1).]
The Board notes the Veteran did not receive VCAA notice prior
to the initial adjudication of his claims for hypertension,
obstructive sleep apnea and pes planus in August 2003. The
Board is of course aware of the Court's decision in Pelegrini
v. Principi, 17 Vet. App. 412 (2004), which appears to stand
for the proposition that VCAA notice must be sent prior to
adjudication of an issue by the RO.
Crucially, the Veteran was provided with additional VCAA
notice through the March 2004, October 2004 and February 2005
VCAA letters and these claims were readjudicated in the May
2005 SSOC, after he was provided with the opportunity to
submit evidence and argument in support of his claims and to
respond to the VA notice. Accordingly, adequate notice was
provided and any timing errors have been cured. See Overton
v. Nicholson, 20 Vet. App. 427, 437 (2006) [A timing error
may be cured by a new VCAA notification followed by a
readjudication of the claim]. In any event, any timing
errors as to pes planus and hypertension claims are moot as
service connection is being granted for these disabilities.
In short, the record indicates that the Veteran received
appropriate notice under 38 U.S.C.A. § 5103.
Finally, there have been two significant Court decisions
concerning the VCAA.
In the first, Dingess v. Nicholson, 19 Vet. App. 473 (2006),
the Court observed that a claim of entitlement to service
connection consists of five elements: (1) Veteran status;
(2) existence of a disability; (3) a connection between the
Veteran's service and the disability; (4) degree of
disability; and (5) effective date. Because a claim is
comprised of five elements, the notice requirements of
section 5103(a) apply generally to all five elements of that
claim. Therefore, upon receipt of an application for a
service connection claim, section 5103(a) and section
3.159(b) require VA to review the information and the
evidence presented with the claim and to provide the claimant
with notice of what information and evidence not previously
provided, if any, will assist in substantiating or is
necessary to substantiate the elements of the claim. This
includes notice that a disability rating and an effective
date for the award of benefits will be assigned if service
connection is awarded.
In this case, element (1) is not at issue, and the Veteran
was advised as to elements (2) and (3) in the March 2004
letter as detailed above. The Veteran received notice as to
elements (4) and (5), degree of disability and effective
date, in a letter from the RO dated March 20, 2006 as well as
the above-referenced April 2006 letter. As discussed in
detail below, the Board is granting the Veteran's claims for
pes planus, hypertension and GERD. It is not the Board's
responsibility to assign a disability rating or an effective
date in the first instance. The Board is confident that if
required, the Veteran will be afforded any additional
appropriate notice needed under Dingess.
The Veteran was not provided notice of the evidentiary
requirements for his earlier effective date claims until
after the initial adjudication of the claims in October 2005,
and there was no subsequent readjudication to cure the timing
error. See Overton, supra.
However, the Board finds that VCAA notice is not necessary
for the earlier effective date claims. In Manning v.
Principi, 16 Vet. App. 534 (2002), citing Livesay v.
Principi, 15 Vet. App. 165 (2001), the Court held that the
VCAA has no effect on an appeal where the law, and not the
underlying facts or development of the facts, is dispositive
of the matter. The Board finds that such is the case as to
the earlier effective date issues here on appeal. The facts
in this case, which involves the assignment of effective
dates, are not in dispute. Application of pertinent
provisions of the law and regulations will determine the
outcome. No amount of additional evidentiary development
would change the outcome of these claims; therefore no VCAA
notice is necessary. See DelaCruz v. Principi, 15 Vet. App.
143, 149 (2001) [VCAA notice not required where there is no
reasonable possibility that additional development will aid
the claimant].
Specifically, the Court has held that a veteran claiming
entitlement to an earlier effective date is not prejudiced by
failure to provide him with VCAA notice of the laws and
regulations governing effective dates, if, based on the facts
of the case, entitlement to an earlier effective date is not
shown as a matter of law. See Nelson v. Principi, 18 Vet.
App. 407, 410 (2004). Therefore, the essential fairness of
the adjudication was not affected. See Sanders v. Nicholson,
487 F.3d 881 (Fed. Cir. 2007). The Veteran has pointed to no
prejudice or due process concerns arising out of the timing
of the VCAA notice for the effective date claims.
The Board has also considered the Court's recent decision in
Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), which held
that for an increased-compensation claim, section § 5103(a)
requires, at a minimum, that VA notify the claimant that, to
substantiate a claim, the claimant must provide, or ask VA to
obtain, medical or lay evidence demonstrating a worsening or
increase in severity of the disability and the effect that
worsening has on the claimant's employment and daily life.
Additionally, the claimant must be notified that, should an
increase in disability be found, a disability rating will be
determined by applying relevant Diagnostic Codes, which
typically provide for a range in severity of a particular
disability from noncompensable to as much as 100 percent
(depending on the disability involved), based on the nature
of the symptoms of the condition for which disability
compensation is being sought, their severity and duration,
and their impact upon employment and daily life.
The notice must also provide examples of the types of medical
and lay evidence that the claimant may submit (or ask VA to
obtain) that are relevant to establishing entitlement to
increased compensation, e.g., competent lay statements
describing symptoms, medical and hospitalization records,
medical statements, employer statements, job application
rejections, and any other evidence showing an increase in the
disability or exceptional circumstances relating to the
disability.
See Vazquez-Flores, 22 Vet. App. at 43-44.
The Veteran did not receive notice in compliance with the
Vazquez-Flores decision. However, with respect to appeals of
initially assigned disability ratings, such as the instant
case, the additional notice requirements recently set forth
in Vazquez-Flores do not apply. Specifically, once service
connection has been granted, VA's VCAA notice obligations are
fully satisfied and any defect in the notice is not
prejudicial. See Hartman v. Nicholson, 483 F.3d 1311 (Fed.
Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); see
also Goodwin v. Peake, 22 Vet. App. 128 (2008) [where a claim
has been substantiated after the enactment of the VCAA, the
appellant bears the burden of demonstrating any prejudice
from defective VCAA notice with respect to any downstream
elements].
Because there is no indication that there exists any evidence
which could be obtained which would have an effect on the
outcome of this case, no further VCAA notice is necessary.
See Dela Cruz, supra.
Duty to assist
As alluded to above, under the VCAA, VA's statutory duty to
assist a claimant in the development of a previously finally
denied claim does not attach until the claim has been
reopened based on the submission of new and material
evidence. Once a claim is reopened, the VCAA provides that
VA shall make reasonable efforts to assist a claimant in
obtaining evidence necessary to substantiate the claimant's
claim for benefits under a law administered by VA, unless no
reasonable possibility exists that such assistance would aid
in substantiating the claim.
38 U.S.C.A. § 5103A (West 2002).
As for the remaining claims, the Board finds that reasonable
efforts have been made to assist the Veteran in obtaining
evidence necessary to substantiate her claims.
In particular, the RO has obtained the Veteran's service
medical treatment records, reports of VA outpatient
treatment, as well as the report of VA examinations of the
Veteran in March 2003 and June 2004. An addendum opinion was
provided for the June 2004 VA examination in July 2004.
The Veteran has not been provided a VA examination for his
claims for entitlement to service connection for chronic
fatigue syndrome, diabetic retinopathy, polyuria, polyphagia,
polydipsia, blurred vision, nausea, dry mouth, excessive
sweating, abdominal pain, leg pain, tinnitus and gout. Under
McLendon v. Nicholson, 20 Vet. App. 79 (2006), in initial
service connection claims, the VA must provide a VA medical
examination when there is (1) competent evidence of a current
disability or persistent or recurrent symptoms of a
disability; (2) evidence establishing that an event, injury,
or disease occurred in service; (3) an indication that the
disability or persistent or recurrent symptoms of a
disability may be associated with the Veteran's service; and
(4) insufficient competent medical evidence on file for VA to
make a decision on the claim.
A medical examination is unnecessary in this case, because as
detailed below there is no objective and competent evidence
of a current disability or persistent or recurrent symptoms
of a disability for the chronic fatigue syndrome, diabetic
retinopathy, polyuria, polyphagia, polydipsia, blurred
vision, nausea, dry mouth, excessive sweating, abdominal
pain, or leg pain claims (McLendon element 1). For the
tinnitus and gout claims, there is no evidence establishing
an event, injury or disease occurred in service and an
indication that the disability may be associated with the
Veteran's service (McLendon elements 2 and 3). Under such
circumstances, an examination is not required.
The facts of this case are different than the facts in
Charles v. Principi, 16 Vet. App. 370 (2002), in which the
Court held that VA erred in failing to obtain a medical nexus
opinion where evidence showed acoustic trauma in service and
a current diagnosis of tinnitus. Significantly, in this case
there is no competent medical evidence of current diagnosis
for the chronic fatigue syndrome, diabetic retinopathy,
polyuria, polyphagia, polydipsia, blurred vision, nausea, dry
mouth, excessive sweating, abdominal pain, or leg pain
claims; and there is no objective evidence of the in-service
incurrence of tinnitus or gout.
The Veteran also argues that he should be provided with an
examination for his claim for special monthly compensation
based on the need for regular aid and attendance or
housebound status. See the Veteran's March 5, 2005
statement. However, as described below, there is no
indication in the substantial evidence of record that the
Veteran requires the aid and attendance of another or is
confined to his home. Indeed, there is evidence to the
contrary. As there is sufficient medical evidence for VA to
make a decision on the claim, an examination is not
warranted. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. §
3.159 (2008).
Accordingly, the Board finds that under the circumstances of
this case, the VA has satisfied the notification and duty to
assist provisions of the law and that no further actions
pursuant to the VCAA need be undertaken on the Veteran's
behalf.
The Board additionally observes that all appropriate due
process concerns have been satisfied. See 38 C.F.R. § 3.103
(2008). The Veteran has been accorded the opportunity to
secure the service of a representative and to present
evidence and argument in support of his claims. He has
declined the option of a personal hearing.
Accordingly, the Board will proceed to a decision as to 23 of
the issues on appeal.
1. Entitlement to service connection for pes planus.
2. Entitlement to service connection for hypertension,
claimed as secondary to service-connected PTSD.
3. Entitlement to service connection for GERD, claimed as
secondary to service-connected PTSD.
4. Entitlement to service connection for chronic fatigue
syndrome, claimed as secondary to service-connected PTSD.
5. Entitlement to service connection for diabetic
retinopathy.
6. Entitlement to service connection for polyuria,
polyphagia, polydipsia, blurred vision, nausea, dry mouth,
excessive sweating, abdominal pain and leg pain, claimed as
secondary to service-connected diabetes mellitus.
7. Entitlement to service connection for tinnitus.
8. Entitlement to service connection for gout.
9. Entitlement to service connection for obstructive sleep
apnea, claimed as secondary to service-connected PTSD.
For the sake of economy, these issues will be discussed
together, to the extent practicable.
Relevant law and regulations
Service connection - in general
In general, service connection may be granted for disability
or injury incurred in or aggravated by active military
service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303
(2008).
In order to establish service connection for the claimed
disorder on a direct basis, there must be (1) medical
evidence of a current disability; (2) medical, or in certain
circumstances, lay evidence of in-service incurrence or
aggravation of a disease or injury; and (3) medical evidence
of a nexus between the claimed in-service disease or injury
and the current disability. See Hickson v. West, 12 Vet.
App. 247, 253 (1999). The determination as to whether these
requirements are met is based on an analysis of all the
evidence of record and the evaluation of its credibility and
probative value. See Baldwin v. West, 13 Vet. App. 1, 8
(1999).
For certain chronic disorders, including arthritis, service
connection may be granted if the disease becomes manifest to
a compensable degree within one year following separation
from service. See 38 U.S.C.A. §§ 1101, 1112, 1113 (West
2002); 38 C.F.R. §§ 3.307, 3.309 (2008).
Service connection presupposes a diagnosis of a current
disability.
See Rabideau v. Derwinski, 2 Vet. App. 141 (1992). A
"current disability" means a disability shown by competent
medical evidence to exist. See Chelte v. Brown, 10 Vet. App.
268 (1997).
Secondary service connection
Service connection may be established on a secondary basis
for a disability that is proximately due to or the result of
a service-connected disease or injury.
See 38 C.F.R. § 3.310 (2008); see also Harder v. Brown, 5
Vet. App. 183, 187 (1993). Additional disability resulting
from the aggravation of a non-service-connected condition by
a service-connected condition is also compensable under
38 C.F.R. § 3.310. See Allen v. Brown, 7 Vet. App. 439, 448
(1995).
In order to prevail on the issue of entitlement to secondary
service connection, there must be (1) evidence of a current
disability; (2) evidence of a service-connected disability;
and (3) medical nexus evidence establishing a connection
between the service-connected disability and the current
disability. See Wallin v. West, 11 Vet. App. 509, 512
(1998).
Analysis
The pes planus claim
As noted above, in order to establish service connection for
the claimed disorder on a direct basis, there must be
(1) medical evidence of a current disability; (2) medical, or
in certain circumstances, lay evidence of in-service
incurrence or aggravation of a disease or injury; and (3)
medical evidence of a nexus between the claimed in-service
disease or injury and the current disability. See Hickson,
supra.
With respect to Hickson element (1), medical evidence of a
current disability, there are numerous diagnoses of pes
planus of record.
With respect to Hickson element (2), in-service incurrence or
aggravation of disease or injury, the Veteran's service
medical records reflect that he was diagnosed with pes planus
in June 1968 and provided with arch supports. Hickson
element (2) is also satisfied.
With respect to Hickson element (3), the March 2003 VA
examiner opined that the Veteran's "[b]ilateral moderately
severe pes planus . . . is at least as likely is [sic] not
related to his service time as he had increased foot pain
during that time with use of orthotics." Hickson element
(3) is therefore also satisfied.
Because all three elements have been met, a grant of service
connection for pes planus is warranted.
The hypertension and GERD claims
As noted above, in order to establish service connection for
a claimed disability on a secondary basis, there must be (1)
medical evidence of a current disability; (2) a service-
connected disability; and (3) medical evidence of a nexus
between the service-connected disease or injury and the
current disability. See Wallin, supra.
With respect to Wallin element (1), medical evidence of a
current disability, there are numerous diagnoses of
hypertension and GERD of record.
With respect to Wallin element (2), a service-connected
disability, the Veteran is currently service connected for
PTSD. Wallin element (2) is accordingly satisfied. [The
Board observes in passing that the Veteran is also service-
connected for diabetes, peripheral neuropathy, erectile
dysfunction and a laceration of the left little finger;
however, his contentions concern only the service-connected
PTSD].
With respect to Wallin element (3), the March 2003 VA
examiner opined it was "as least as likely as not that the
[V]eteran's hypertension and GERD are secondary to his
PTSD." Wallin element (3) is therefore also satisfied.
Because all three elements have been met, a grant of
secondary service connection for hypertension and GERD is
warranted.
The chronic fatigue syndrome, diabetic retinopathy, polyuria,
polyphagia, polydipsia, blurred vision, nausea, dry mouth,
excessive sweating, abdominal pain and leg pain claims
With respect to Hickson element (1), current disability,
there is no medical evidence that supports a conclusion that
chronic fatigue syndrome or diabetic retinopathy are
currently present. No diagnosis of chronic fatigue syndrome
or diabetic retinopathy is offered in the numerous VA and
private outpatient medical records in the claims file.
Indeed, a December 2006 VA teleretinal examination was
negative for "diabetes related retinal (eye) disease," a
more recent March 2007 VA diabetes examination noted "there
was no evidence of a retinopathy," and a February 2008 VA
optometry consult report was negative for diabetic
neuropathy. See Forshey v. West, 12 Vet. App. 71, 74 (1998),
aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358
(Fed. Cir. 2002) [the definition of evidence encompasses
"negative evidence" which tends to disprove the existence
of an alleged fact, i.e., the lack of evidence is itself
evidence].
With respect to the claim for polyuria, polyphagia,
polydipsia, blurred vision, nausea, dry mouth, excessive
sweating, abdominal pain and leg pain, symptoms alone,
without a diagnosed or identifiable underlying malady or
condition, do not constitute a disability for which service
connection may be granted. See Sanchez-Benitez v. West, 13
Vet. App. 282, 285 (1999). Without a diagnosis of a
disability or disabilities accounting for these symptoms
service connection may not be granted.
To the extent that the Veteran himself contends that he has
chronic fatigue syndrome and diabetic retinopathy or a
disability manifested by polyuria, polyphagia, polydipsia,
blurred vision, nausea, dry mouth, excessive sweating,
abdominal pain and leg pain, it is now well-established that
lay persons without medical training, such as the Veteran,
are not competent to comment on medical matters such as
diagnosis. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5
(1992); see also 38 C.F.R. § 3.159 (a)(1) [competent medical
evidence means evidence provided by a person who is qualified
through education, training, or experience to offer medical
diagnoses, statements, or opinions]. Accordingly, the
Veteran's own statements offered in support of his claims are
not competent medical evidence and do not serve to establish
the existence of a current disability.
In the absence of any currently diagnosed chronic fatigue
syndrome, diabetic retinopathy or a disability manifested by
polyuria, polyphagia, polydipsia, blurred vision, nausea, dry
mouth, excessive sweating, abdominal pain and leg pain,
service connection may not be granted. See Degmetich v.
Brown, 104 F.3d 1328 (Fed. Cir. 1997); Gilpin v. Brown, 155
F.3d 1353 (Fed. Cir. 1998) [service connection cannot be
granted if the claimed disability does not exist].
Accordingly, Hickson element (1) has not been met, and these
claims fail on this basis alone.
The tinnitus and gout claims
VA outpatient records dated in August 2000 and November 2000
reflect a diagnosis of tinnitus, and gouty arthritis was
identified in a November 2001 X-ray report. Hickson element
(1) is therefore satisfied for the claims.
With respect to element (2), in-service disease and injury,
the Board will separately discuss disease and injury.
With respect to in-service disease, there is no evidence of
ear disease or arthritis in service. Specifically, the
Veteran's September 1967 entrance examination was completely
normal with respect to the Veteran's hearing, and no
arthritis was identified. Similarly, his February 1970
separation physical examination, including audiology testing
and chest X-ray, was pertinently negative. In an
accompanying report of medical history, the Veteran
specifically denied hearing problems, swollen or painful
joints and arthritis or rheumatism. The service medical
records are otherwise negative with respect to tinnitus and
arthritis.
The Board additionally notes that gouty arthritis was not
present until November 2001, well beyond the period for
presumptive service connection for arthritis.
See 38 C.F.R. §§ 3.307, 3.309 (2008).
With respect to in-service injury, the Veteran has not
alleged a specific injury leading to gout. As for the
tinnitus claim, the Veteran in essence contends that exposure
to noise driving trucks without mufflers in Vietnam caused
injury to his ears. See the Veteran's November 30, 2005
statement. The Board observes that the Veteran's military
occupational specialty was heavy truck driver.
The Board notes that the evidence of record does not indicate
that the Veteran is a Veteran of combat, and he does not
appear to so contend. The combat presumptions are therefore
not applicable. See 38 U.S.C.A. § 1154 (West 2002);
38 C.F.R. § 3.304(d) (2008).
The Board wishes to make it clear that it does not
necessarily dispute that the Veteran may have been exposed to
noise in service, as undoubtedly were millions of other
Veterans. However, the Veteran has not pointed to any
statutory or regulatory presumption which equates noise
exposure with injury to the ears, and the Board is aware of
none.
The medical evidence of record does not support the Veteran's
implied contention that he sustained an ear injury during his
military service. Crucially, his February 1970 separation
physical examination is pertinently negative for ear injury,
and in the accompanying report of medical history he
specifically denied ear trouble and hearing loss.
Indeed, there is no mention of tinnitus by the Veteran until
he filed his claim of entitlement to VA benefits in December
2005, over 35 years after he left military service in
February 1970 and 35 years after the Veteran filed his
initial claim for VA benefits in June 1971. See Shaw v.
Principi, 3 Vet. App. 365 (1992) [a Veteran's delay in
asserting a claim can constitute negative evidence that
weighs against the claim].
The Veteran's June 1971 claim involved a claim for bilateral
hearing loss. He did not refer to injury to his ears. The
Veteran did not make any arguments as to any in-service
injury to his ears. See the Veteran's March 27, 1972 notice
of disagreement. A July 1971 VA audiological examination was
completely normal, and the Veteran made no complaints as to
ringing in his ears. During a subsequent April 1985 VA
examination for unrelated compensation claims, the Veteran
indicated problems with a scalp condition, headaches and back
pain- no complaints as to hearing problems or tinnitus were
made.
The lack of any evidence of tinnitus for three and a half
decades after service, and the filing of the claim for
service connection 35 years after service is itself evidence
which tends to show that no injury to the ear was sustained
in service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed.
Cir. 2000) [noting that it was proper to consider the
veteran's entire medical history, including the lengthy
period of absence of complaint with respect to the condition
he now raised].
Thus, the Board rejects the notion that acoustic trauma and
resulting ear damage should be conceded. There is no
objective, contemporaneous evidence that the Veteran
sustained acoustic trauma in the performance of his duties,
and there is no evidence of tinnitus in service or for
decades thereafter.
In essence, the Veteran's case rests of his own non-specific
contention that he sustained a bilateral ear injury or
injuries in service. The Board has considered those
statements. However, his statements are outweighed by the
negative service medical records, to include his own denial
of such problems, as well as the lack of objective evidence
of tinnitus for decades after service. See Curry v. Brown,
7 Vet. App. 59, 68 (1994) [contemporaneous evidence has
greater probative value than history as reported by the
veteran].
In short, because the record as a whole clearly demonstrates
that the Veteran never mentioned an actual ear injury in
service until he brought up the subject in connection with
his claim for VA benefits approximately 35 years after his
separation from service, the Board finds his recent
statements concerning such an injury to be lacking in
credibility and probative value. See Cartright v. Derwinski,
2 Vet. App. 24, 25 (1991) [VA cannot ignore a veteran's
testimony simply because the Veteran is an interested party;
personal interest may, however, affect the credibility of the
evidence].
Hickson element (2) is therefore not met, and the claims fail
on this basis alone.
The Board additionally observes that in the absence of an in-
service incurrence or aggravation of gout or in-service
incurrence of ear disease or injury, it follows that Hickson
element (3), or medical nexus, is necessarily lacking also.
There is no competent medical evidence to the contrary. To
the extent that the Veteran himself contends that a medical
relationship exists between his current tinnitus and gout and
his military service, his opinion is entitled to no weight of
probative value. See Espiritu, supra. Any such statements
offered in support of the Veteran's claims do not constitute
competent medical evidence and cannot be accepted by the
Board. See also Cromley, supra.
The Veteran argues that Cosman v. Principi, 3 Vet. App. 303
(1992), allows for the grant of his tinnitus claim. See the
August 11, 2006 VA Form 9. Cosman held that service
connection may be granted for disability shown after service
when all of the evidence, including that pertinent to
service, shows that it was incurred in service. See id at
305. The Board has already extensively detailed how the
evidence shows the Veteran's tinnitus was not incurred in
service.
The Veteran may also be presenting an argument based on
continuity of symptomatology, that is that he had tinnitus in
service and continuously thereafter. See 38 C.F.R.
§ 3.303(b) (2008). However, supporting medical evidence is
required. See Voerth v. West, 13 Vet. App. 117, 120-1 (1999)
[there must be medical evidence on file demonstrating a
relationship between the veteran's current disability and the
claimed continuous symptomatology, unless such a relationship
is one as to which a lay person's observation is competent].
Such evidence is lacking in this case. Tinnitus was not
identified in service, and it was initially diagnosed decades
after service. In the interim, there were no complaints of,
or treatment for, tinnitus, including during two VA
examinations. See Maxson, supra. Accordingly, service
connection may not be established via continuity of
symptomatology under 38 C.F.R. § 3.303(b).
For these reasons, both the gout claim and the tinnitus claim
are denied.
The obstructive sleep apnea claim
The Veteran contends that his obstructive sleep apnea is due
to his service-connected PTSD. See the Veteran's December
31, 2002 Statement in Support of Claim. [The Board notes
that the Veteran is also service-connected for diabetes,
peripheral neuropathy, erectile dysfunction, laceration of
the left little finger and now pes planus, hypertension and
GERD; however, his contentions concern only service-connected
PTSD.]
As noted above, in order to establish service connection for
a claimed disability on a secondary basis, there must be (1)
medical evidence of a current disability;
(2) a service-connected disability; and (3) medical evidence
of a nexus between the service-connected disease or injury
and the current disability. See Wallin, supra.
With respect to Wallin element (1), current disability, the
Veteran has been diagnosed with obstructive sleep apnea.
See, e.g., an August 1998 neuropsychological report from
P.K., Psy.D. With respect to Wallin element (2), service-
connected disability, the Veteran is service connected for
PTSD. Wallin element (2) is also satisfied.
With respect to critical Wallin element (3), nexus, there is
no competent medical evidence which supports a conclusion
that a nexus exists between the currently diagnosed
obstructive sleep apnea and the Veteran's service-connected
PTSD. Rather, there is competent medical evidence to the
contrary. After review of the Veteran's claims folder, the
March 2003 VA examiner opined "Sleep apnea is less than
likely due to PTSD. Sleep apnea is caused by structural
problems in the airway."
There are no competent medical opinions to the contrary. To
the extent that the Veteran himself contends that a medical
relationship exists between the service-connected PTSD and
obstructive sleep apnea, his opinion is entitled to no
weight of probative value. See Espiritu, supra. Any such
statements offered in support of the Veteran's claim do not
constitute competent medical evidence and cannot be accepted
by the Board. See also Cromley, supra.
The Veteran has been accorded ample opportunity to present
competent medical evidence in support of his claim; he has
failed to do so. See 38 U.S.C.A. § 5107(a) [it is the
claimant's responsibility to support a claim for VA
benefits].
In short, the preponderance of the competent and probative
evidence of record indicates that the Veteran's currently
diagnosed obstructive sleep apnea is not related to his
service-connected PTSD. Accordingly, Wallin element (3),
medical nexus, has not been satisfied, and the claim fails on
that basis.
Conclusion
For the reasons and bases expressed above, the Board finds
that service connection for service connection for pes
planus, hypertension and GERD is warranted, and those claims
are accordingly granted.
Additionally, the preponderance of the evidence is against
the Veteran's claims of entitlement to service connection for
chronic fatigue syndrome, diabetic retinopathy, polyuria,
polyphagia, polydipsia, blurred vision, nausea, dry mouth,
excessive sweating, abdominal pain and leg pain, tinnitus,
gout and obstructive sleep apnea. Therefore, the benefit of
the doubt rule is not for application because the evidence is
not in relative equipoise. The benefits sought on appeal are
accordingly denied.
10. Whether new and material evidence has been received to
reopen the previously-denied claim of entitlement to service
connection for bilateral hearing loss.
11. Whether new and material evidence has been received to
reopen the previously-denied claim of entitlement to service
connection for refractive error.
12. Whether new and material evidence has been received to
reopen the previously-denied claim of entitlement to service
connection for headaches.
13. Whether new and material evidence has been received to
reopen the previously-denied claim of entitlement to service
connection for a lung disorder.
14. Whether new and material evidence has been submitted to
reopen the previously-denied claim of entitlement to service
connection for a back disability.
15. Whether new and material evidence has been submitted to
reopen the previously-denied claim of entitlement to service
connection for vertigo.
16. Whether new and material evidence has been received to
reopen the previously-denied claim of entitlement to service
connection for bilateral otitis externa.
Because these issues involve the application of identical law
to similar facts, for the sake of economy the board will
address them together.
Relevant law and regulations
Service connection - in general
The law and regulations pertinent to service connection are
detailed above and will not be repeated for the sake of
brevity.
For certain chronic disorders, to include sensorineural
hearing loss, service connection may be granted if the
disease becomes manifest to a compensable degree within one
year following separation from service. 38 U.S.C.A. §§ 1101,
1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309
(2008).
Generally, a congenital disease or defect is not service
connectable as a matter of express VA regulation. See 38
C.F.R. §§ 3.303(c), 4.9 (2008). The only exception is if
there is evidence of additional disability due to aggravation
during service of the congenital disease, but not defect, by
superimposed disease or injury. VAOPGCPREC 82-90; Monroe v.
Brown, 4 Vet. App. 513, 514-15 (1993); Carpenter v. Brown, 8
Vet. App. 240, 245 (1995); VAOPGCPREC 67-90; and VAOPGCPREC
11-99.
Finality/new and material evidence
In general, VA rating decisions that are not timely appealed
are final.
See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103
(2008). Additionally, decisions by the Board are final. See
38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. §§ 3.104, 20.1100
(2008). Pursuant to 38 U.S.C.A. § 5108, a finally disallowed
claim may be reopened when new and material evidence is
presented or secured with respect to that claim.
The Board notes that the definition of material evidence was
revised in August 2001 to require that the newly submitted
evidence relate to an unestablished fact necessary to
substantiate the claims and present the reasonable
possibility of substantiating the claims. See 66 Fed. Reg.
45,620, 45,630 (Aug. 29, 2001) [codified at 38 C.F.R. § 3.156
(2006)]. This change in the law pertains only to claims
filed on or after August 29, 2001. Because the Veteran's
claims to reopen were initiated beginning in 2004, the claims
will be adjudicated by applying the revised section 3.156.
The revised regulation provides that new evidence means
existing evidence not previously submitted to agency decision
makers. Material evidence means existing evidence that, by
itself or when considered with previous evidence of record,
related to an unsubstantiated fact necessary to substantiate
the claim. New and material evidence can be neither
cumulative nor redundant of the evidence of record at the
time of the last prior final denial of the claim sought to be
reopened, and must raise a reasonable possibility of
substantiating the claim. See 38 C.F.R. § 3.156(a) (2008).
For the purpose of establishing whether new and material
evidence has been submitted, the credibility of the evidence,
although not its weight, is presumed.
See Justus v. Principi, 3 Vet. App. 510, 513 (1992).
Factual background
For the sake of clarity, the Board will first present a brief
factual background as to each of these claims.
The bilateral otitis externa claim
Service connection for bilateral otitis externa was initially
denied in a July 2004 rating decision. The record at that
time showed an in-service complaint of otitis externa. The
RO's denial was predicated on lack of a current disability
[Hickson element (1)].
The hearing loss, refractive error, and headache claims
Service connection for bilateral hearing loss was initially
denied in July 1972 Board decision. The Board's decision was
predicated on absence of a current disability and an in-
service disease or injury [i.e., Hickson elements (1) and
(2)]. Hickson element (3), medical nexus, was also
necessarily lacking for the claim.
Service connection for a visual condition and headaches was
initially denied in an unappealed November 1985 rating
decision. Specifically, the RO determined that the Veteran's
refractive error was a congenital defect which had not been
aggravated during service. Similarly, there was no current
diagnosis of a headache disorder or in-service evidence of
headaches [Hickson elements (1) and (2)]. Hickson element
(3), medical nexus, was also necessarily lacking for the
claims.
The back, lung, and vertigo claims
Service connection for a back disability was initially denied
in July 1972 Board decision. The Board's decision as to the
back claim was predicated on absence of an in-service disease
or injury [Hickson element (2)]. Hickson element (3),
medical nexus, was also necessarily lacking for the claim.
The Veteran subsequently attempted to reopen the back claim
in January 2001, and that claim was denied in an unappealed
July 2002 rating decision. At that time service connection
for a lung disorder was initially denied, and service
connection for vertigo was initially denied in an August 2003
rating decision. The RO's denial of service connection for a
lung disorder and vertigo was predicated on the absence of
evidence of in-service disease [Hickson element (2)].
Hickson element (3), medical nexus, was also necessarily
lacking for the claims.
The Board notes that the claim for a lung disorder does not
include the issue of entitlement to service connection for an
upper respiratory infection, which is being remanded for
additional evidentiary development.
Analysis
The Board will address the claims by group based on the
service connection element or elements which were lacking at
the time of the previous final decision. The Board's inquiry
will be directed to whether new and material evidence has
been received as to the missing elements.
The bilateral otitis externa claim [Hickson element (1)]
The July 2004 rating decision is final. See 38 U.S.C.A. §
7105 (West 2002);
38 C.F.R. § 20.1103 (2008).
As explained above, the Veteran's claims for service
connection may only be reopened if he submits new and
material evidence. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156
(2008); Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir.
1996). Therefore, the Board's inquiry will be directed to
the question of whether any additionally received (i.e. after
July 2004) evidence bears directly and substantially upon the
specific matter under consideration, namely whether the
Veteran has submitted evidence indicating current bilateral
otitis externa. See 38 C.F.R. § 3.156 (2008).
A May 2005 VA outpatient record diagnoses the Veteran with a
"mild otitis externa." This evidence can be considered
"new" with respect to the claim, in that it was not
previously considered by the RO in the July 2004 adjudication
of the claim, and it arguably is "material" because it is
so significant that it must be considered in order to fairly
decide the merits of the Veteran's claim. See 38 C.F.R. §
3.156 (2008).
Accordingly, new and material evidence has been submitted
with respect to bilateral otitis externa claim, and it is
thus reopened.
As was alluded to in the VCAA discussion above, VA's
statutory duty to assist the Veteran in the development of
his claim attaches at this juncture. Although the evidence
discussed above is adequate for the limited purposes of
reopening the claim, this does not make it sufficient to
allow the grant of the benefits sought.
See generally Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998)
[material evidence is evidence that would contribute to a
more complete picture of the circumstances surrounding the
origin of a veteran's injury or disability, even where it
would not be enough to convince the Board to grant the
claim]. In particular, there is no medical nexus opinion of
record relating the Veteran's current bilateral otitis
externa to complaints in service.
The Board therefore believes that additional evidentiary
development is required as to this issue. This will be
discussed in the remand section below.
The bilateral hearing loss and headache claims [Hickson
elements (1) and (2)]
The July 1972 Board decision and November 1985 rating
decision are final.
See 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. §§
3.104, 20.1100, 20.1103 (2008).
The Board's inquiry will be directed to the question of
whether any additionally received (i.e. after July 1972 for
the hearing loss claim; after November 1985 for the headache
claim) evidence bears directly and substantially upon the
specific matter under consideration, namely whether the
Veteran has submitted evidence indicating a current hearing
loss and headache disabilities and the presence of such in
service. See 38 C.F.R. § 3.156 (2008).
Evidence which has been added to the record since the
November 1985 and July 2002 rating decisions includes
diagnoses of hearing loss and headaches.
See, e.g., VA outpatient records dated in August 2000 and
November 2000 diagnosing hearing loss and a February 2001
outpatient record diagnosing headaches. Thus, there has been
added to the record new evidence as to Hickson element (1),
current disability.
However, the claims may not be reopened on that basis alone.
See Evans v. Brown, 9 Vet. App. 273 (1996) [there must be new
and material evidence as to each and every aspect of the
claim that was lacking at the time of the last final denial
in order for there to be new and material evidence to reopen
the claim]. The Veteran has not submitted evidence
pertaining to Hickson element (2), in-service disease or
injury, for the hearing loss and headache claims. That
element was lacking at the time of the last final denial.
The Veteran's own statements are essentially reiterative of
his previously-expressed contentions to the effect that he
has hearing loss and headaches which are related to his
experiences in military service. Such contentions are not
new. See Reid v. Derwinski, 2 Vet. App. 312, 315 (1992).
Accordingly, new and material evidence has been received as
to element (2).
This scenario differs from the bilateral otitis externa claim
in that denial of service connection for bilateral otitis
externa was predicated solely on lack of a current diagnosis.
There was of record in-service evidence of otitis externa;
what was need was new and material evidence e only as to the
matter of current disability. Such is not the case for the
headache and hearing loss claims, which were denied by the RO
based on the lack of evidence of in-service disease or injury
as well as no evidence of current disability. Therefore,
while evidence of current disability alone serves to reopen
the otitis externa claim, the same cannot be said of the
hearing loss and headache claims.
In short, the additionally added evidence does not serve to
establish, or even suggest, that the Veteran's hearing loss
or headaches began during service.
The evidence submitted subsequent to the July 1972 and
November 1985 denials of the Veteran's claims is therefore
cumulative and redundant of the evidence of record at those
times, and it therefore does not raise a reasonable
possibility of substantiating the claims. See 38 C.F.R. §
3.156(a) (2008).
Accordingly, new and material evidence has not been
submitted, and the claims for entitlement to service
connection for bilateral hearing loss and headaches are not
reopened. The benefits sought on appeal remain denied.
The refractive error claim- evidence of in-service
aggravation of a congenital defect
The November 1985 decision is final. See 38 U.S.C.A. § 7105
(West 2002);
38 C.F.R. § 20.1103 (2008).
As explained above, the Veteran's claim for service
connection may only be reopened if he submits new and
material evidence. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156
(2008); Barnett, supra. Therefore, the Board's inquiry will
be directed to the question of whether any additionally
received (i.e. after November 1985) evidence bears directly
and substantially upon the specific matter under
consideration, namely whether the Veteran has submitted
evidence indicating aggravation of his congenital refractive
error in service. See 38 C.F.R. § 3.156 (2008).
The Veteran has submitted no evidence of in-service
aggravation of his refractive error. VA outpatient records
document continued treatment for the Veteran's congenital
refractive error. Crucially, these records do not indicate
aggravation of congenital refractive error in service. As
such, these medical records are not new and material. See
Cornele v. Brown, 6 Vet. App. 59, 62 (1993); Mintz v. Brown,
6 Vet. App. 277, 280 (1994) [medical evidence that merely
documents continued diagnosis and treatment of disease,
without addressing the crucial matter of medical nexus, does
not constitute new and material evidence].
With respect to the Veteran's own statements and testimony to
the effect that his current refractive error was aggravated
during military service, such evidence is cumulative and
redundant of statements made prior to the November 1985
decision and accordingly is not new. See Reid, supra.
In short, the additionally added evidence does not serve to
establish, or even suggest, that the Veteran's refractive
error was aggravated by his military service. The evidence
submitted subsequent to the November 1985 denial of the
Veteran's claim is therefore cumulative and redundant of the
evidence of record at that time, and it therefore does not
raise a reasonable possibility of substantiating the claim.
See 38 C.F.R. § 3.156(a) (2008).
Accordingly, new and material evidence has not been
submitted, and the claim of entitlement to service connection
for refractive error is not reopened. The benefit sought on
appeal remains denied.
The back, lung and vertigo claims - Hickson element (2)
The July 2002 and August 2003 decisions are final. See 38
U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2008).
The Board's inquiry will be directed to the question of
whether any additionally received (i.e. after July 2002 for
the lung and back claims; after August 2003 for the vertigo
claim) evidence bears directly and substantially upon the
specific matter under consideration, namely whether the
Veteran has submitted evidence indicating in-service back
disease or injury, in-service lung disease or in-service
vertigo. See 38 C.F.R. § 3.156 (2008).
Recent VA and private medical records document ongoing
medical treatment. These records do not indicate whether the
Veteran's current back, lung and vertigo problems are a
result of an in-service disease or injury. As such, these
medical records are not new and material. See Cornele and
Mintz, both supra.
A May 2000 VA outpatient record and a July 2000 record from
R.B.H., M.D., note a "work-related spine injury." This
evidence, although new, is not material, since it is against
the claim. See Villalobos v. Principi, 3 Vet. App. 450
(1992) [evidence that is unfavorable to a claimant is not new
and material].
With respect to the Veteran's own statements and testimony to
the effect that his current back, lung and vertigo problems
are related to his military service, such evidence is
cumulative and redundant of statements made prior to the July
2002 and August 2003 decisions and accordingly is not new.
See Reid, supra. See also Moray v. Brown, 5 Vet. App. 211
(1993), the Court noted that laypersons are not competent to
offer medical opinions and that such evidence does not
provide a basis on which to reopen a claim for service
connection. In Routen v. Brown, 10 Vet. App. 183, 186,
(1997), the Court noted "[l]ay assertions of medical
causation . . . cannot suffice to reopen a claim under 38
U.S.C.A. 5108."
In short, the additionally added evidence does not serve to
establish, or even suggest, that the Veteran's back, lung and
vertigo problems are medically related to his military
service. The evidence submitted subsequent to the July 2002
and August 2003 denials of the Veteran's claims is therefore
cumulative and redundant of the evidence of record at that
time, and it therefore does not raise a reasonable
possibility of substantiating the claims. See 38 C.F.R. §
3.156(a) (2008).
Accordingly, new and material evidence has not been
submitted, and the claims for entitlement to service
connection for a back disability, a lung disorder and vertigo
are not reopened. The benefits sought on appeal remain
denied.
17. Entitlement to an increased (compensable) disability
rating for service-connected laceration of the left little
finger.
Relevant law and regulations
Disability evaluations are determined by the application of
the VA's Schedule for Rating Disabilities (Rating Schedule),
38 C.F.R. Part 4 (2008). The percentage ratings contained in
the Rating Schedule represent, as far as can be practicably
determined, the average impairment in earning capacity
resulting from diseases and injuries incurred or aggravated
during military service and their residual conditions in
civil occupations. See 38 U.S.C.A. § 1155 (West 2002); 38
C.F.R. §§ 3.321(a), 4.1 (2008).
Analysis
Assignment of diagnostic code
The Veteran's service-connected left little finger laceration
is currently rated under 38 C.F.R. 4.118, Diagnostic Code
7805 (2008) [scars, other].
The Board observes in passing that in 2002 regulatory changes
amended the rating criteria for evaluating skin disabilities.
See 67 Fed. Reg. 49596 (July 31, 2002) [effective August 30,
2002]. The Veteran's claim dates from January 2001, so both
the former and current schedular criteria are theoretically
applicable.
See VAOPGCPREC 7-2003 [where a law or regulation changes
after the claim has been filed, but before the administrative
or judicial process has been concluded, the version most
favorable to the Veteran applies]. However, Diagnostic Code
7805, which calls for rating based on limitation of function
of the affected part, was not amended.
The assignment of a particular Diagnostic Code is
"completely dependent on the facts of a particular case."
See Butts v. Brown, 5 Vet. App. 532, 538 (1993).
One Diagnostic Code may be more appropriate than another
based on such factors as an individual's relevant medical
history, the current diagnosis, and demonstrated
symptomatology. Any change in Diagnostic Code by a VA
adjudicator must be specifically explained. See Pernorio v.
Derwinski, 2 Vet. App. 625, 629 (1992).
In this case, the Board has considered whether another rating
code is more appropriate than the one used by the RO,
Diagnostic Code 7805. See Tedeschi v. Brown, 7 Vet. App.
411, 414 (1995).
The Board has considered the application of other diagnostic
codes referable to scars. None are applicable in this case.
The Veteran's laceration scar is not on the head, face or
neck, and is not described a deep. The scar, although
superficial, does not cover an extensive area, is not
unstable and do not produce pain or tenderness during
examination. Therefore, the use of Diagnostic Codes 7800-
7804 is not appropriate.
The Board additionally observes that no underlying muscle
injuries have been medically identified, so rating the
disabilities, or any of them, under 38 C.F.R. § 4.73 [muscle
injuries] is not appropriate.
The Veteran has suggested no other diagnostic code, and the
Board cannot identify a diagnostic code that would be more
appropriate. Accordingly, the Board will continue to analyze
the Veteran's laceration scar under Diagnostic Code 7805.
Schedular rating
The Veteran has argued that his service-connected left little
finger laceration causes "pain on pressure and during cold
weather, limited motion and weak grasp strength. I have pain
year around [sic] and a feeling of numbness at all times."
See the July 27, 2004 notice of disagreement.
Under Diagnostic Code 7805, scars are evaluated on the basis
of any related limitation of function of the body part that
they effect. See 38 C.F.R. § 4.118, Diagnostic Code 7805
(2008).
Diagnostic Code 5230 provides for a noncompensable [zero
percent] rating for any limitation of motion of the left or
ring finger. See 38 C.F.R. 4.71a, Diagnostic Code 5230
(2008).
The evidence of record shows that the Veteran's service-
connected laceration currently causes a minimal loss of
function of the left little finger. Specifically, the
Veteran presented for a VA examination in June 2004 and
reported numbness, stiffness, cold sensitivity and loss of
sensation from the PIP joint distally to the tip of the
finger. Physical examination at that time revealed that the
left little finger scar was "subtle," measuring 2.25 x 1
centimeter. The Veteran evidenced "slight" stiffness of
the distal tip of the left fifth finger and no sensation to
the distal tip upon monofilament testing. However, grasp was
good and the Veteran was able to perform finger opposition
with all digits. The examiner acknowledged the Veteran's
complaints of cold sensitivity, paresthesias and stiffness of
the distal PIP, but emphasized he was able to perform finger
opposition with all digits and had adequate strength with no
contracture. An X-ray of the left hand was negative for
degenerative changes.
In short, there is a minimal loss of function and virtually
no limitation of motion and related to the service-connected
left little finger laceration.
There is no competent medical evidence to contradict the
findings of the VA examiner. A careful review of the record
indicates that there is no medical evidence of record tending
to indicate that the Veteran experiences any significant
limitation of motion associated with his laceration of the
left little finger. It does not appear that he has requested
medical treatment for the laceration and associated scarring.
In any event, Diagnostic Code 5230 rates any limitation of
motion of the little finger as noncompensably disabling.
DeLuca consideration
The Board has considered whether an increased disability
rating is warranted for the Veteran's left little finger scar
based on functional loss due to pain, weakness, excess
fatigability, incoordination and flare-ups, pursuant to 38
C.F.R. §§ 4.40 and 4.45 and the Court's holding in DeLuca v.
Brown, 8 Vet. App. 202 (1995).
However, in Johnston v. Brown, 10 Vet. App. 80, 85 (1997),
the Court determined that if a claimant is already receiving
the maximum disability rating available based on
symptomatology that includes limitation of motion, it is not
necessary to consider whether 38 C.F.R. § 4.40 and 4.45 are
applicable. A noncompensable evaluation is the maximum
rating allowable under Diagnostic Code 5230. Accordingly,
the aforementioned provisions of 38 C.F.R. § 4.40 and § 4.45
are not for consideration.
Fenderson consideration
The Court has held that an appeal from an initial rating is a
separate and distinct claim from a claim for an increased
rating. At the time of an initial rating, separate ratings
can be assigned for separate periods of time based on facts
found, a practice known as "staged ratings." See Fenderson
v. West, 12 Vet. App. 119, 126 (1999).
In this case, the medical evidence of record appears to
support the proposition that the Veteran's service-connected
laceration of the left little finger has not changed
appreciably since the Veteran filed his claim. There are no
medical findings and no other evidence which would allow for
the assignment of compensable disability rating at any time
during the period of time here under consideration. Based on
the record, the Board finds that noncompensable disability
rating was properly assigned for the entire period from the
date of service connection, December 16, 2003. Staged
ratings are therefore not appropriate.
Extraschedular rating consideration
Ordinarily, the VA Schedule for Rating Disabilities will
apply unless there are exceptional or unusual factors which
would render application of the schedule impractical. See
Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to
the regulation, an extraschedular disability rating is
warranted upon a finding that the case presents such an
exceptional or unusual disability picture with such related
factors as marked interference with employment or frequent
periods of hospitalization that would render impractical the
application of the regular schedular standards. See 38
C.F.R. 3.321(b)(1) (2008).
The Veteran has never asked for an extraschedular rating, and
the RO has never adjudicated the same. Moreover, the Veteran
has not identified any factors which may be considered to be
exceptional or unusual with respect to the left little finger
scar.
Accordingly, the matter of the Veteran's potential
entitlement to an extraschedular rating will not be
considered by the Board. See Floyd v. Brown, 9 Vet. App. 88,
95 (1996) [the Board cannot make a determination as to an
extraschedular evaluation in the first instance]; see also
Bernard v. Brown, 4 Vet. App. 384 (1993) [when the Board
addresses in a decision a question that has not been
addressed by the RO, it must consider whether the claimant
has been given adequate notice and opportunity to respond
and, if not, whether the claimant will be prejudiced
thereby].
In any event, the Veteran is already in receipt of TDIU, so
the matter of his entitlement to an extraschedular rating for
the service-connected little finger scar is effectively moot.
Conclusion
In summary, for the reasons and bases expressed above, the
Board finds that the Veteran does not meet the criteria for a
compensable disability rating for his service-connected
laceration of the left little finger. The benefit sought on
appeal is therefore denied.
18. Entitlement to an effective date earlier than December
31, 2002 for the award of service connection for diabetes
mellitus.
Relevant law and regulations
Effective dates- in general
Unless specifically provided otherwise in the statute, the
effective date of an award based on an original claim shall
be the date of receipt of the claim or the date entitlement
arose, whichever is later. 38 U.S.C.A. § 5110(a) (West
2002);
38 C.F.R. § 3.400 (2008).
Effective dates - liberalizing law
Where compensation is awarded pursuant to a liberalizing law,
the effective date of such award shall be fixed in accordance
with the facts found, but shall not be earlier than the
effective date of the act. See 38 C.F.R. §§ 3.114(a),
3.400(p) (2008).
If a claim is reviewed at the request of the claimant more
than 1 year after the effective date of the law or VA issue,
benefits may be authorized for a period of 1 year prior to
the date of receipt of such request. 38 C.F.R. §
3.114(a)(3).
In order for a claimant to be eligible for a retroactive
payment, however, the evidence must show that the claimant
met all eligibility criteria for the liberalized benefit on
the effective date of the liberalizing law or VA issue and
that such eligibility existed continuously from that date to
the date of claim or administrative determination of
entitlement. See 38 C.F.R. § 3.114(a) (2008); see also McCay
v. Brown, 9 Vet. App. 183, 188 (1996), aff'd, 106 F3d 1577,
1581 (Fed. Cir. 1997).
Effective dates - Nehmer class members
Effective dates for disability compensation awarded to Nehmer
class members is set forth at 38 C.F.R. § 3.816. Under that
regulation, a Nehmer class member is a Vietnam Veteran who
has a covered herbicide disease. Covered herbicide diseases
include Type 2 Diabetes [also known as type II diabetes
mellitus or adult-onset diabetes)]. See 38 C.F.R. §
3.816(b)(2).
Under 38 C.F.R. § 3.816, if a Nehmer class member is entitled
to disability compensation for a covered herbicide disease,
the effective date of the award will be as follows:
(1) If VA denied compensation for the same covered herbicide
disease in a decision issued between September 25, 1985 and
May 3, 1989, the effective date of the award will be the
later of the date VA received the claim on which the prior
denial was based or the date the disability arose, except as
otherwise provided in paragraph (c)(3) of this section. A
prior decision will be construed as having denied
compensation for the same disease if the prior decision
denied compensation for a disease that reasonably may be
construed as the same covered herbicide disease for which
compensation has been awarded. Minor differences in the
terminology used in the prior decision will not preclude a
finding, based on the record at the time of the prior
decision, that the prior decision denied compensation for the
same covered herbicide disease.
(2) If the class member's claim for disability compensation
for the covered herbicide disease was either pending before
VA on May 3, 1989, or was received by VA between that date
and the effective date of the statute or regulation
establishing a presumption of service connection for the
covered disease, the effective date of the award will be the
later of the date such claim was received by VA or the date
the disability arose, except as otherwise provided in
paragraph (c)(3) of this section.
[It is noted that the effective date for the regulation which
added diabetes mellitus as a disease presumptively due to in-
service exposure to herbicides is May 8, 2001.
See Liesegang v. Secretary of Veterans Affairs, 312 F.3d 1368
(Fed. Cir. 2002)].
A claim will be considered a claim for compensation for a
particular covered herbicide disease if:
(i) The claimant's application and other supporting
statements and submissions may reasonably be viewed, under
the standards ordinarily governing compensation claims, as
indicating an intent to apply for compensation for the
covered herbicide disability; or (ii) VA issued a decision on
the claim, between May 3, 1989 and the effective date of the
statute or regulation establishing a presumption of service
connection for the covered disease, in which VA denied
compensation for a disease that reasonably may be construed
as the same covered herbicide disease for which compensation
has been awarded.
(3) If the class member's claim referred to in paragraph
(c)(1) or (c)(2) of this section was received within one year
from the date of the class member's separation from service,
the effective date of the award shall be the day following
the date of the class member's separation from active
service.
(4) If the requirements of paragraph (c)(1) or (c)(2) of
this section are not met, the effective date of the award
shall be determined in accordance with §§ 3.114 and 3.400.
38 C.F.R. § 3.816(c) (2008).
Analysis
The Veteran is also seeking an effective date earlier than
the currently assigned
January 16, 2003 for service connection for diabetes
mellitus.
In this case, the Veteran is a "Nehmer class member" within
the meaning of 38 C.F.R. § 3.816(b)(1) and has a "covered
herbicide disease" [i.e., diabetes mellitus] within the
meaning of 38 C.F.R. § 3.816(b)(2). A review of the record
indicates that VA never denied a claim of service connection
for diabetes mellitus from the Veteran between September 25,
1985 and May 3, 1989. Thus, an earlier effective date is not
warranted under
38 C.F.R. § 3.816(c)(1).
Likewise, the Veteran did not submit a claim for diabetes
mellitus between May 3, 1989 and May 8, 2001, the effective
date for the regulation which added diabetes mellitus as a
disease presumptively due to in-service exposure to
herbicides.
See Liesegang, supra. He does not contend otherwise. Thus,
an earlier effective date is not warranted under 38 C.F.R. §
3.816(c)(2).
Finally, the Veteran did not submit a claim of service
connection for diabetes mellitus within one year of his
separation from service in February 1970. Again, he does not
contend otherwise. Thus, 38 C.F.R. § 3.816(c)(3) is
inapplicable.
Because these requirements have not been met, 38 C.F.R. §
3.816 provides that the effective date of the award of
service connection for diabetes must be determined in
accordance with §§ 3.114 and 3.400.
38 C.F.R. § 3.114 pertains to effective dates based on
liberalizing legislation.
That regulation stipulates that if a claim for benefits is
filed or reviewed by VA more than one year after the issuance
of the liberalizing law, the evidence of record must show
that the claimant met all eligibility criteria for the
liberalized benefit on the effective date of the liberalizing
law or VA issue and that such eligibility existed
continuously from that date to the date of claim or
administrative determination of entitlement.
Here, the effective date of the regulation which added
diabetes mellitus as a disease presumptively due to in-
service exposure to herbicides is May 8, 2001. The Veteran
was diagnosed with diabetes mellitus at that time; there is a
VA outpatient treatment record which notes "his diabetes was
diagnosed per file in 1994." His service in Vietnam and
presumptive herbicide exposure therein is not in dispute.
Thus, the evidence shows that the Veteran met all eligibility
criteria for service connection for diabetes as of May 8,
2001, the effective date of the liberalizing law. However,
he did not file a claim for service connection for diabetes
until December 31, 2002, more than a year after the date of
the liberalizing legislation. Pursuant to 38 C.F.R. §
3.114(a)(3), if a claim is reviewed at the request of the
claimant more than 1 year after the effective date of the law
or VA issue, benefits may be authorized for a period of 1
year prior to the date of receipt of such request.
Accordingly, the earliest effective date available by law for
the grant of service connection for diabetes mellitus is
December 31, 2001. The benefit sought on appeal is granted
to that extent.
19. Entitlement to an effective date earlier than May 28,
1998 for the award of TDIU.
Relevant law and regulations
TDIU
It is the established policy of VA that all Veterans who are
unable to secure and follow a substantially gainful
occupation by reason of service-connected disabilities shall
be rated totally disabled. See 38 C.F.R. § 4.16 (2008). A
finding of total disability is appropriate "when there is
present any impairment of mind or body which is sufficient to
render it impossible for the average person to follow a
substantially gainful occupation." See 38 C.F.R. §§
3.340(a)(1), 4.15 (2008).
A claim for a total disability rating based upon individual
unemployability "presupposes that the rating for the
[service-connected] condition is less than 100%, and only
asks for TDIU because of 'subjective' factors that the
'objective' rating does not consider." Vettese, 7 Vet. App.
at 34-35.
A total disability rating for compensation may be assigned,
where the schedular rating is less than total, when the
disabled person is, in the judgment of the rating agency,
unable to secure or follow a substantially gainful occupation
as a result of service-connected disabilities, provided that,
if there is only one such disability, this disability shall
be ratable at 60 percent or more. If there are two or more
disabilities, there shall be at least one disability ratable
at 40 percent or more and the combined rating must be 70
percent or more. See 38 C.F.R. § 4.16(a) (2008).
Pursuant to 38 C.F.R. § 4.16(b), when a claimant is unable to
secure and follow a substantially gainful occupation by
reason of service-connected disabilities, but fails to meet
the percentage requirements for eligibility for a total
rating set forth in 38 C.F.R. § 4.16(a), such case shall be
submitted for extraschedular consideration in accordance with
38 C.F.R. § 3.321.
Effective dates
A TDIU claim is a claim for increased compensation, and the
effective date rules for increased compensation apply to a
TDIU claim. See Hurd v. West, 13 Vet. App. 449 (2000).
The effective date of an award of increased disability
compensation is the earliest date that it is factually
ascertainable that an increase in disability had occurred, if
a claim is received within one year thereof. Otherwise, it
is the date of receipt of the claim or the date entitlement
arose, whichever is later. See 38 U.S.C.A. § 5110 (West
2002); 38 C.F.R. § 3.400(o)(1) (2008).
Claims
A specific claim in the form prescribed by the Secretary must
be filed in order for benefits to be paid or furnished to any
individual under the laws administered by VA. 38 U.S.C.A. §
5101(a) (West 2002); 38 C.F.R. § 3.151(a) (2008).
A claim is a formal or informal communication in writing
requesting a determination of entitlement or evidencing a
belief in entitlement to a benefit.
38 U.S.C.A. § 101(30) (West 2002); 38 C.F.R. § 3.1(p) (2008).
Any communication or action indicating an intent to apply for
one or more benefits under the laws administered by VA, from
a Veteran or his representative, may be considered an
informal claim. Such informal claim must identify the
benefit sought.
Upon receipt of an informal claim, if a formal claim has not
been filed, an application form will be forwarded to the
claimant for execution. If received within one year from the
date it was sent to the Veteran, it will be considered filed
as of the date of receipt of the informal claim. When a
claim has been filed which meets the requirements of 38
C.F.R. §§ 3.151 or 3.152, an informal request for increase or
reopening will be accepted as a claim. 38 C.F.R. § 3.155
(2008).
Once a Veteran: (1) submits evidence of a medical disability;
(2) makes a claim for the highest rating possible; and (3)
submits evidence of unemployability, the requirement in 38
C.F.R. § 3.155(a) that an informal claim "identify the
benefit sought" has been satisfied and VA must consider
whether the Veteran is entitled to TDIU. See Roberson v.
Principi, 251 F.3d 1378 (Fed. Cir. 2001); VAOPGCPREC 12- 2001
(July 6, 2001).
Factual background
The Veteran filed a claim for a disability rating in excess
of 50 percent for his service-connected PTSD [his only
service-connected disability at the time] on May 28, 1998.
His claim for an increased rating was denied in a December
1998 rating decision, and he appealed to the Board. In an
October 2002 statement, the Veteran's representative argued
"In any event, even if assigned only a 70-percent schedular
rating, the newly adduced evidence clearly supports that [the
Veteran] is entitled to [TDIU]."
In a November 2002 Board decision which awarded the Veteran a
70 percent disability rating for service-connected PTSD, the
Board noted that the Veteran submitted a claim for TDIU and
referred that claim to the RO. A December 2002 rating
decision awarded TDIU, assigning an effective date of May 28,
1998, "the date in which your service-connected condition
increased to such severity as to warrant entitlement." This
appeal followed.
Analysis
The Veteran contends that he is entitled to an effective date
prior to May 28, 1998 for the grant of TDIU.
In determining an appropriate effective date, the Board must
first identify the date of filing of the TDIU claim. The
Board then determines when it was "factually ascertainable"
that TDIU was demonstrated. Such date may be before or after
the date the claim was filed, but may be no more than one
year prior to the date of claim. See 38 C.F.R. § 3.400(o)
(2008).
(i.) Date of claim
The RO has used the date of the Veteran's claim for an
increased rating for PTSD, May 28, 1998, as the date of claim
and the effective date for TDIU.
The Board notes that the Veteran claimed service connection
for PTSD in November 1984, August 1986, April 1987 and
November 1987 and filed claims for increased ratings in April
1990 (this was an informal claim for an increase based on a
periodic examination) and July 1996. At no time did the
Veteran claim he was unemployable because of his PTSD, which
as noted above was his only service-connected disability at
the time.
Accordingly, the Board finds that the date of the TDIU claim
was May 28, 1998.
(ii.) "Factually ascertainable"
Having established that the date of the Veteran's claim of
entitlement to TDIU was May 28, 1998, the Board's inquiry
moves to the matter of when it was factually ascertainable
that the Veteran was unemployable due to service-connected
PTSD. The range of possible dates starts one year before the
date the claim was filed, May 28, 1997, and ends on the date
as of which TDIU has been established by the RO, May 28,
1998. See 38 C.F.R. § 3.400(o).
As has been discussed in the law and regulations section
above, TDIU may be awarded on either a schedular basis or an
extraschedular basis.
From May 28, 1997 to May 28, 1998, the Veteran was service-
connected for PTSD with a 50 percent disability rating
assigned. Accordingly, the Veteran's service-connected
disability did not meet the schedular criteria for
consideration of TDIU under 38 C.F.R. § 4.16(a). Thus, it
must be established that TDIU could be awarded on an
extraschedular basis during that one year period. See
38 C.F.R. § 4.16(b).
For a veteran to prevail on a claim for TDIU on an
extraschedular basis, the record must reflect some factor
which takes the case outside the norm. The sole fact that a
claimant was unemployed or had difficulty obtaining
employment is not enough. See Van Hoose v. Brown, 4 Vet. App.
361, 363 (1993) [noting that the disability rating itself is
recognition that industrial capabilities are impaired].
In this case, the evidence of record does not show that the
Veteran's service-connected PTSD was so exceptional or
unusual that it alone was sufficient to cause the Veteran to
be unemployable from May 28, 1997 to May 28, 1998. The
medical evidence demonstrates that other, non service-
connected, disabilities were responsible for the Veteran's
unemployability. The Veteran reported to P.K. in August 1998
that he had prior jobs in construction, farming and truck
driving until 1994, when he sustained a work-related thoracic
and cervical spine injury. P.K. determined that the
Veteran's chronic medical problems, including back pain, had
a negative impact on his cognitive functioning but that he
would not have any significant cognitive problems that would
prevent his successful completion of a vocational
rehabilitation program. The April 1999 VA examiner similarly
described various "physical problems" which prevented the
Veteran from working. The examiner did not indicate that the
Veteran was unemployable due to PTSD. Indeed, he emphasized
that most of the Veteran's symptoms "seem more closely
related to the chronic pain" of his non service-connected
disabilities. A VA outpatient note dated in April 1999
states that "the main reason that he is unable to work
apparently is because of his medical problems. He is on
total disability for back pain."
In sum, the evidence dated around the period in question
demonstrates that the Veteran's PTSD was not solely
responsible for his unemployability, but that other, non
service-connected medical problems negatively impacted his
ability to work.
Further, there is no evidence in the medical records of an
exceptional or unusual clinical picture, of frequent
hospitalizations due to the then service-connected PTSD, or
of any other reason why TDIU should be considered on an
extraschedular basis. The April 1999 VA examiner
specifically noted the Veteran had not been hospitalized for
PTSD.
The Board wishes to make it clear that the Veteran's service-
connected PTSD undoubtedly interfered with his industrial
capacity prior to May 28, 1998. However, any such
interference is reflected in the 50 percent disability rating
that was assigned. Loss of industrial capacity is the
principal factor in assigning schedular disability ratings.
See 38 C.F.R. §§ 3.321(a), 4.1 (2008). Indeed,
38 C.F.R. § 4.1 specifically states: "[g]enerally, the
degrees of disability specified are considered adequate to
compensate for considerable loss of working time from
exacerbations or illnesses proportionate to the severity of
the several grades of disability." See also Moyer v.
Derwinski, 2 Vet. App. 289, 293 (1992) and Van Hoose, supra.
In short, the Board has considered the assignment of TDIU on
an extraschedular basis during the one year period prior to
May 28, 1998. For reasons and bases expressed above, the
Board finds that an effective date earlier than May 28, 1998
cannot be assigned.
20. Entitlement to compensation pursuant to 38 U.S.C. § 1151
for denial of a treadmill and an inferior whirlpool bath.
21. Entitlement to compensation pursuant to 38 U.S.C. § 1151
for diabetes mellitus.
Relevant law and regulations
In pertinent part, 38 U.S.C. § 1151 reads as follows:
"(a) Compensation under this chapter and dependency and
indemnity compensation under chapter 13 of this title shall
be awarded for a qualifying additional disability or a
qualifying death of a Veteran in the same manner as if such
additional disability or death were service- connected. For
purposes of this section, a disability or death is a
qualifying additional disability or qualifying death if the
disability or death was not the result of the Veteran's
willful misconduct and--
"(1) the disability or death was caused by hospital care,
medical or surgical treatment, or examination furnished the
Veteran under any law administered by the Secretary, either
by a Department employee or in a Department facility as
defined in section 1701(3)(A) of this title, and the
proximate cause of the disability or death was- (A)
carelessness, negligence, lack of proper skill, error in
judgment, or similar instance of fault on the part of the
Department in furnishing the hospital care, medical or
surgical treatment, or examination; or (B) an event not
reasonably foreseeable."
Analysis
As was noted in the law and regulations section above, to
substantiate a claim under 38 U.S.C. § 1151, the evidence
must show that VA treatment caused additional disability, and
that such additional disability was the result of negligence,
carelessness or the like on the part of VA or was due to an
event not reasonably foreseeable.
The Veteran has pointed to no specific instance of VA
treatment leading to his denial of a treadmill and an
inferior whirlpool bath. Moreover, there is no evidence that
his lack of a treadmill and inferior whirlpool bath caused
additional disability. Instead, it appears the Veteran is
frustrated with the exercise equipment which has been
provided to him by VA. However, frustration does not equate
to "additional disability" for purposes of compensation
pursuant to 38 U.S.C. § 1151.
The same is the case with the claim for diabetes. The
Veteran argues that he exhibited symptoms of diabetes long
before the VA diagnosed and treated it, thus causing
"additional disabilities." See the Veteran's March 23,
2006 statement. The Veteran has submitted a copy of a VA
outpatient record noting was diagnosed with diabetes by VA in
1994 and was "diet controlled until January 2003." There
is no evidence from this record, or any other medical
evidence in the claims folder for that matter, that any
additional disability was caused by VA purportedly failing to
diagnose diabetes prior to 1994.
The Veteran has offered only his own statements as evidence
that VA was negligent in his medical treatment. However,
there is no evidence of record that the Veteran has any
medical training or expertise. It is now well established
that lay persons without medical training, such as the
Veteran, are not competent to attribute symptoms to a
particular cause. See Espiritu v. Derwinski, 2 Vet. App.
492, 494-5 (1992); see also 38 C.F.R. § 3.159 (a)(1)
[competent medical evidence means evidence provided by a
person who is qualified through education, training, or
experience to offer medical diagnoses, statements, or
opinions]. The Board finds that the Veteran's statements are
not probative as to the matter of the VA medical treatment
being careless, negligent, lacking proper skill, or erring in
judgment in furnishing medical treatment to the Veteran.
Accordingly, as there is no evidence of additional
disability, the claims of entitlement to compensation
pursuant to 38 U.S.C. § 1151 for denial of a treadmill and an
inferior whirlpool bath and diabetes fail.
The Board adds that service connection has been granted for
diabetes mellitus in any event.
22. Whether discontinuance of services under the Independent
Living program was proper.
Relevant law and regulations
VA may conduct programs of independent living services for
severely handicapped persons. See 38 U.S.C.A. § 3120(a). VA
may also provide a program of independent living services and
assistance under this section only to a veteran who has a
serious employment handicap resulting in substantial part
from a service-connected disability, and it has been
determined that the achievement of a vocational goal is not
currently feasible. See 38 U.S.C.A. § 3120(b).
The purpose of independent living services is to assist
eligible veterans whose ability to function independently in
family, community, or employment, is so limited by the
severity of disability (service- and nonservice-connected)
that vocational or rehabilitation services need to be
appreciably more extensive than for less disabled veterans.
See 38 C.F.R. § 21.160(a).
A program of independent living services and assistance is
approved when: (1) VA determines that achievement of a
vocational goal is not currently reasonably feasible; (2) VA
determines that the veteran's independence in daily living
can be improved, and the gains made can reasonably be
expected to continue following completion of the program; (3)
all steps required by Sections 21.90 and 21.92 of this part
for the development and preparation of an IILP have been
completed; and (4) the VR&C Officer concurs in the program.
See 38 C.F.R. § 21.162(a).
When a veteran's case has been assigned to the independent
living program status, the case will be terminated from that
status, if one of the following occurs: (1) A veteran, who
has been notified of necessary arrangements to begin a
program, the date the program begins and instructions as to
the next steps to be taken: (i) Fails to report and does not
respond to followup contact by the case manager, (ii)
Declines or refuses to enter the program; or (iii) defers
entry for more than 30 days beyond the scheduled beginning
date, unless the deferment is due to illness or other
sufficient reason; (2) the veteran completes the IILP; (3)
either the Veteran or VA interrupts the program; (4) either
the veteran or VA discontinues the program; or (5) service
connection for the veteran's service-connected disability is
severe by VA or he or she otherwise ceases to be eligible.
See 38 C.F.R. § 21.192(d).
Factual background
In January 2000, the Veteran was approved for VA Vocational
Rehabilitation services. His pursuit of a vocational goal
was eventually determined to be not reasonably feasible, and
he was approved for a program of Independent Living services
in March 2003.
At that time an IILP was developed, the objectives of which
were as follows: (1) contact the local Vet Center to
determine feasibility for counseling for service-connected
PTSD; (2) work with a nutritionist and/or counselor for
diabetes and weight loss and to address a possible eating
disorder; (3) utilize a computer for communication and
research; (4) meet with Dr. C. to determine
abilities/limitations; (5) complete an ergonomic assessment
of his house; (6) complete a neuropsychiatric assessment
through Vocational Rehabilitation if deemed necessary and (7)
identify avocational activities.
In December 2005, the RO informed the Veteran that it would
discontinue benefits under the Independent Living services
program, as all goals in the IILP had been achieved and the
maximum statutory period for such services had been utilized.
This appeal followed.
Analysis
For reasons detailed below, the Board has determined that
discontinuance of the Veteran's Independent Living Services
was proper.
First, the Veteran has utilized the maximum amount of time
allowed for participation of the program. Pursuant to 38
C.F.R. § 21.76, the duration of services under the
Independent Living program may not exceed 24 months unless
the counseling psychologist finds that an additional period
of up to 6 months would enable the Veteran to substantially
increase his or her level of independence in daily living.
In the instant case, the Veteran received the full 24 months
of Independent Living service. In December 2005, an
additional six months of services was authorized and granted.
Therefore, further participation in the program is
unavailable.
Additionally, the goals of the Veteran's IILP have been met.
In August 2004, a representative from the Vet Center
indicated that group counseling sessions were available for
PTSD, but that the Veteran would need to present for an
individual assessment and travel to either Fargo or Grand
Forks, which the Veteran refused to do (Goal 1). The Veteran
met with a psychiatric nurse at the Fargo VAMC in May 2003
concerning his weight issues and exercise, at which time his
obsession eating tendencies were addressed (Goal 2). The
Veteran was provided with a computer to assist with
communication and research (Goal 3). The Veteran met with
Dr. C. in July 2003, at which time he determined the Veteran
was ideally suited to do light work in a protected
environment away from people. He was advised to avoid
stressful situations, crowds, or employment requiring contact
with others (Goal 4). The Veteran received over $12,000 in
alterations to his bathroom, to include installation of a
whirlpool tub. (Goal 5). It does not appear that a
neuropsychiatric assessment through Vocational Rehabilitation
was offered; however, this goal was not mandatory. Moreover,
the Veteran has had numerous psychiatric outpatient visits
and compensation examinations over the course of the appeal
(Goal 6). Finally, the Veteran was given a metal detector
and camera to pursue recreational activities (Goal 7).
Accordingly, as the Veteran completed the terms of his ILLP,
his termination from the Independent Living Services Program
was proper.
See 38 C.F.R. § 21.192(d)(2).
For reasons described above, termination under the
Independent Living Services was appropriate.
23. Entitlement to special monthly compensation based on the
need for regular aid and attendance or housebound status.
Relevant law and regulations
Aid and attendance
Special monthly compensation is payable at a specified rate
if the veteran, as the result of service-connected
disability, is permanently bedridden or so helpless as to be
in need of regular aid and attendance. 38 U.S.C.A. § 1114(l)
(West 2002),
38 C.F.R. § 3.350(b) (2008).
The following will be accorded consideration in determining
the need for regular aid and attendance: inability of
claimant to dress or undress himself, or to keep himself
ordinarily clean and presentable; frequent need of adjustment
of any special prosthetic or orthopedic appliances which by
reason of the particular disability cannot be done without
aid (this will not include the adjustment of appliances which
normal persons would be unable to adjust without aid, such as
supports, belts, lacing at the back, etc.); inability of
claimant to feed himself through loss of coordination of
upper extremities or through extreme weakness; inability to
attend to the wants of nature; or incapacity, physical or
mental, which requires care or assistance on a regular basis
to protect the claimant from hazards or dangers incident to
his daily environment. "Bedridden" will be a proper basis
for the determination.
A veteran will be found to be bedridden if the condition
actually requires that he remain in bed, but not if he
voluntarily stays in bed or if a physician merely recommends
bed rest. It is not required that all of the disabling
conditions enumerated in this paragraph be found to exist
before a favorable rating may be made. The particular
personal functions that the veteran is unable to perform
should be considered in connection with his condition as a
whole. It is only necessary that the evidence establish that
the veteran is so helpless as to need regular aid and
attendance, not that there be a constant need.
Determinations that the veteran is so helpless, as to be in
need of regular aid and attendance will not be based solely
upon an opinion that the claimant's condition is such as
would require him to be in bed. They must be based on the
actual requirement of personal assistance from others.
Housebound rate
Special monthly compensation is payable at a specified rate
if the veteran, as the result of service-connected
disability, has one service-connected disability rated as 100
percent disabling and a separate disability rated at 60
percent or higher or he is permanently housebound. The
veteran will be found to be permanently housebound if, due to
his service-connected disabilities, he is confined to his
home or the immediate premises or, if institutionalized, to
the ward or clinical areas, and it is reasonably certain that
such confinement will continue throughout his lifetime.
38 U.S.C.A. § 1114(s) (West 2002); 38 C.F.R. § 3.350(i)
(2008).
Analysis
As a preliminary matter, the Board notes that the Veteran
does not meet the criteria for special monthly compensation
at the housebound rate, based on one service-connected
disability rated as 100 percent disabling and a separate
disability rated at 60 percent or higher. Service connection
is currently in effect for PTSD
(rated 100 percent disabling); however, none of the Veteran's
other service-connected disabilities diabetes mellitus are
rated 60 percent or higher.
In addition, there is simply nothing in the medical evidence
of record which shows that the Veteran is in any manner
unable to engage in activities outside of his home.
In support of his claim, the Veteran asserts that "I very
seldom leave the house on account of my anxiety attacks and
agoraphobia combined with the PTSD effects." See the
Veteran's March 5, 2005 statement. However, the evidence of
record does not reflect he is permanently confined to his
home or the immediate premises. Specifically, he presents
for VA medical treatment on a regular basis. In addition, in
a March 2007 VA outpatient record the Veteran described
walking a mile a day at least five days per week. In May
2005 the Veteran informed a vocational rehabilitation
employee that he "will be in Fargo on Friday". See a May
4, 2005 Vocational Rehabilitation note. He subsequently
described utilizing a metal detector outdoors. He has also
reported completing water aerobics classes with his wife.
See a May 23, 2003 Vocational Rehabilitation note.
Nor does the Veteran meet the criteria for special monthly
compensation based on the need for regular aid and
attendance. During the Veteran's most recent outpatient
visit of record dated in October 2008, the Veteran denied
bowel or bladder incontinence. An April 1999 mental health
assessment and June 2004 VA psychiatric examination were
negative for memory problems. The Veteran indicated during
March 2007 and June 2008 VA diabetes examinations he had no
bowel or bladder difficulties, suggesting that he can attend
to the needs of nature.
There is no evidence to the contrary.
The Veteran has extensively described his uncontrollable
eating habits, which unquestionably indicates that he can
feed himself. An April 1999 VA mental health assessment
indicates the Veteran is capable of maintaining minimal
hygiene, e.g. dressing and undressing himself and shaving.
The Veteran does not require a special prosthetic or
orthopedic appliance to assist with ambulation-he presented
for a podiatry consult in August 2008 and indicated no
problems with ambulation.
In sum, the evidence reflects the Veteran is independent in
all activities of daily living and does not require regular
aid and attendance of another person.
The Veteran' s claim is not supported by any competent
medical evidence demonstrating that he is in fact disabled to
the extent that he requires the regular aid and assistance of
another person, or that he is limited to his house and its
immediate premises. He has not provided or identified any
such evidence. See 38 U.S.C.A.
§ 5107(a), supra.
In conclusion, for the reasons and bases expressed above the
Board finds that the preponderance of the evidence is against
the claim for special monthly compensation for regular aid
and attendance and at the housebound rate. The benefit
sought on appeal is accordingly denied.
ORDER
Service connection for pes planus is granted.
Service connection for hypertension is granted.
Service connection for GERD is granted.
Entitlement to service connection for chronic fatigue
syndrome is denied.
Entitlement to service connection for diabetic retinopathy is
denied.
Entitlement to service connection for polyuria, polyphagia,
polydipsia, blurred vision, nausea, dry mouth, excessive
sweating, abdominal pain and leg pain, claimed as secondary
to service-connected diabetes mellitus, is denied.
Entitlement to service connection for tinnitus is denied.
Entitlement to service connection for gout is denied.
Entitlement to service connection for obstructive sleep apnea
is denied.
The request to reopen the previously denied claim of
entitlement to service connection for bilateral hearing loss
is denied.
The request to reopen the previously denied claim of
entitlement to service connection for refractive error is
denied.
The request to reopen the previously denied claim of
entitlement to service connection for headaches is denied.
The request to reopen the previously denied claim of
entitlement to service connection for a lung disorder is
denied.
The request to reopen the previously denied claim of
entitlement to service connection for a back disability is
denied.
The request to reopen the previously denied claim of
entitlement to service connection for vertigo is denied.
New and material evidence having been received, the claim of
entitlement to service connection for bilateral otitis
externa is reopened. To that extent only, the appeal as to
this issue is allowed.
Entitlement to a compensable disability rating for a
laceration of the left little finger is denied.
Entitlement to an effective date of December 31, 2001 for the
award of service connection for diabetes mellitus is granted.
Entitlement to an effective date earlier than May 28, 1998
for the grant of TDIU is denied.
Entitlement to compensation pursuant to 38 U.S.C. § 1151 for
denial of a treadmill and an inferior whirlpool bath is
denied.
Entitlement to compensation pursuant to 38 U.S.C. § 1151 for
diabetes mellitus is denied.
Discontinuance of services under Title 38, United States
Code, Chapter 31, Vocational Rehabilitation Services,
Independent Living Program was proper.
Entitlement to special monthly compensation based on the need
for regular aid and attendance or housebound status is
denied.
REMAND
24. Whether new and material evidence has been submitted to
reopen a previously-denied claim of entitlement to service
connection for bruxism, claimed as secondary to service-
connected PTSD.
25. Whether new and material evidence has been submitted to
reopen a previously-denied claim of entitlement to service
connection for obesity, claimed as secondary to service-
connected PTSD.
In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court
determined that to comply with the notice requirements of the
VCAA, "VA must notify a claimant of the evidence and
information that is necessary to reopen the claim and VA must
notify the claimant of the evidence and information that is
necessary to establish his entitlement to the underlying
claim for the benefit sought by the claimant."
The Court also noted that "the VCAA requires [VA] to look at
the bases for the denial in the prior decision and to respond
with a notice letter that describes what evidence would be
necessary to substantiate that element or elements required
to establish service connection that were found insufficient
in the previous denial."
The June 2005 VCAA letter sent to the Veteran concerning the
bruxism and obesity claims contained no notification that the
claims had been previously denied, nor did it inform the
Veteran of the elements he needed to establish in order to
reopen the claims, namely medical nexus evidence linking his
bruxism and obesity to service-connected PTSD. Remand is
therefore necessary for compliance with Kent.
26. Entitlement to service connection for an upper
respiratory infection.
27. Entitlement to service connection for hemorrhoids, to
include as secondary to service-connected disabilities.
28. Entitlement to service connection for fibromyalgia,
claimed as secondary to service-connected PTSD.
29. Entitlement to service connection for a skin disorder,
to include as secondary to herbicide exposure and service-
connected diabetes mellitus and PTSD.
Entitlement to service connection for bilateral otitis
externa [which has been reopened based on the submission of
new and material evidence].
As detailed above, in order to establish service connection
for a claimed disorder, generally there must be (1) medical
evidence of a current disability; (2) medical, or in certain
circumstances, lay evidence of in-service incurrence or
aggravation of a disease or injury; and (3) medical evidence
of a nexus between the claimed in-service disease or injury
and the current disability. See Hickson, supra.
With respect to Hickson element (1), the medical evidence
reflects current diagnoses of an upper respiratory infection,
bilateral otitis externa, and numerous skin problems (tinea
pedis, seborrheic keratosis, cutaneous skin tags, tinea
cruris, hidradenitis suppurativa, onychomycosis, etc.).
Additionally, with respect to Hickson element (2), service
treatment records reflect the Veteran was diagnosed with an
upper respiratory infection in June 1968 and bilateral otitis
externa in December 1969. Additionally, he served in Vietnam
and thus his exposure to herbicide agents is presumed.
In order to prevail on the issue of entitlement to secondary
service connection, there must be (1) evidence of a current
disability; (2) evidence of a service-connected disability;
and (3) medical nexus evidence establishing a connection
between the service-connected disability and the current
disability. See Wallin, supra.
The Veteran currently evidences fibromyalgia, hemorrhoids and
skin disorders. Additionally, he is service-connected for
PTSD, diabetes, peripheral neuropathy of the bilateral lower
extremities, erectile dysfunction, a left little finger
laceration, pes planus, hypertension and GERD.
This case presents certain medical questions which cannot be
answered by the Board. See Colvin v. Derwinski, 1 Vet. App.
171, 175 (1991) [the Board is prohibited from exercising its
own independent judgment to resolve medical questions].
These questions concern (1) the relationship, if any, between
the Veteran's current upper respiratory infection, bilateral
otitis externa, skin problems and his military service, to
include presumed herbicide exposure therein and
(2) the relationship, if any between the Veteran's current
fibromyalgia and service-connected PTSD; the relationship,
if any, between the Veteran's current hemorrhoids and his
service-connected disabilities; and the relationship, if any,
between the Veteran's current skin problems and his service-
connected diabetes and PTSD.
A medical opinion is therefore necessary as to the claims for
an upper respiratory infection, bilateral otitis externa,
hemorrhoids and fibromyalgia. See Charles v. Principi, 16
Vet. App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (2008)
[a medical examination or opinion is necessary if the
information and evidence of record does not contain
sufficient competent medical evidence to decide the claim].
Additionally, the Board finds that a thorough examination is
warranted that includes opinions addressing the current
nature of the Veteran's dermatologic disorder(s) and their
relationship to his military service and service-connected
PTSD and diabetes.
30. Entitlement to an effective date earlier than December
16, 2003 for the award of service connection for a laceration
of the left little finger.
As was described in the Introduction above, in July 2004 the
RO awarded service connection for a left little finger
laceration and assigned a noncompensable disability rating,
effective December 16, 2003. The Veteran almost immediately
expressed disagreement as to the effective date assigned.
See the July 27, 2004 statement from the Veteran.
In Manlincon v. West, 12 Vet. App. 238 (1999), the Court held
that where a notice of disagreement is filed but a SOC has
not been issued, the Board must remand the claim to the AOJ
so that a SOC may be issued. Thus, the AOJ must issue a SOC
as to the effective date issue.
Accordingly, these issues are REMANDED to the Veterans
Benefits Administration (VBA) for the following actions:
1. VBA should issue a SOC pertaining to
the issue of entitlement to an effective
date prior to December 16, 2003 for the
award of a left little finger laceration.
In connection therewith, the Veteran should
be provided with appropriate notice of his
appellate rights.
2. With respect to the claims of
entitlement to service connection for
bruxism and obesity, VBA should send the
Veteran a corrective VCAA notice which
complies with the notification requirements
of the VCAA, to include the evidentiary
requirements as to new and material
evidence. Additionally, the Veteran should
be notified of the bases for the previous
denials of his bruxism and obesity claims
(namely lack of medical nexus), so that he
may be aware of what evidence would be new
and material to reopen these claims. See
Kent, supra.
3. VBA should arrange for an examiner with
appropriate medical expertise to review the
Veteran's VA claims folder and provide an
opinion, with supporting rationale, as to:
(1) whether there is any relationship
between any currently identified upper
respiratory infection and the Veteran's
military service; (2) whether there is any
relationship between any currently
identified bilateral otitis externa and the
Veteran's military service; (3) whether the
Veteran's currently diagnosed fibromyalgia
is as likely as not related to his service-
connected PTSD; and (4) whether Veteran's
currently diagnosed hemorrhoids are as
likely as not related to his service-
connected disabilities (PTSD, diabetes,
peripheral neuropathy of the bilateral
lower extremities, erectile dysfunction, a
left little finger laceration, pes planus,
hypertension and GERD). If the examiner
finds that physical examination of the
Veteran and/or diagnostic testing is
necessary, such should be accomplished. A
report should be prepared and associated
with the Veteran's VA claims folder.
4. VBA should schedule the Veteran for a
VA dermatologic examination to determine
the existence and etiology of any current
skin disabilities. The examiner should
review the Veteran's claims folder and
render an opinion as to (1) whether there
is any relationship between any currently
identified skin disorder(s) and the
Veteran's military service, with specific
consideration of the Veteran's presumed
herbicide exposure therein; and (2) whether
the currently diagnosed skin disorder(s)
is(are) as likely as not related to his
service-connected PTSD or diabetes.
An examination report should be prepared
and associated with the Veteran's VA claims
folder.
5. After undertaking any additional
development deemed by it to be appropriate,
VBA should readjudicate the Veteran's
claims of whether new and material evidence
has been submitted which is sufficient to
reopen the previously-denied claims of
entitlement to service connection for
bruxism and obesity and entitlement to
service connection for an upper respiratory
infection, bilateral otitis externa, skin
problems, fibromyalgia and hemorrhoids. If
the benefits sought on appeal remain
denied, in whole or in part, VBA should
provide the Veteran with a SSOC and allow
an appropriate period of time for response.
The case should then be returned to the
Board for further consideration, if
otherwise in order.
The Veteran has the right to submit additional evidence and
argument on the matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
These claims must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board for
additional development or other appropriate action must be
handled in an expeditious manner. See 38 U.S.C.A.
§§ 5109B, 7112 (West Supp. 2008).
______________________________________________
Barry F. Bohan
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs